R v Fuller (No 4)

1. [1]

   HIS HONOUR: On Monday 23 September 2024, the accused, Connor Fuller, was arraigned at trial in the Supreme Court, sitting at Newcastle, on three counts:

   1. (1)

      that on 28 July 2021 at South West Rocks and elsewhere in the State of New South Wales, he did intimidate Gregory Hunt with the intention of causing the said Gregory Hunt to fear physical or mental harm (Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1));

   2. (2)

      that on 28 July 2021 at South West Rocks in the State of New South Wales, he did murder Mark Tozer (Crimes Act 1900 (NSW), s 18(1)(a)); and, in the alternative

   3. (3)

      that on 28 July 2021 at South West Rocks in the State of New South Wales, he did unlawfully kill Mark Tozer (Crimes Act, s 18(1)(b)).

2. [2]

   The accused entered pleas of guilty to the first count (intimidation) and the third count (manslaughter), and a plea of not guilty to the second count (murder). The Crown declined to accept the plea to manslaughter in satisfaction of the second count, which then proceeded to trial before me, sitting as a Judge alone, for reasons explained in R v Fuller (No 1) [2024] NSWSC 1206. Closing addresses concluded on Thursday 17 October 2024.

3. [3]

   Mr Tozer died from injuries that he sustained during a verbal and physical confrontation with the accused (the confrontation). The defence, in its opening, conceded that the accused inflicted those injuries, and foreshadowed that it would rely upon two partial defences: substantial impairment because of mental health or cognitive impairment (Crimes Act, s 23A) (substantial impairment); and excessive self-defence (Crimes Act, s 421). On 2 October 2024, counsel for the defence informed the Court that it was abandoning the partial defence of substantial impairment and confirmed that the plea to manslaughter was on the sole basis of excessive self-defence. The only remaining issue in the trial, therefore, was whether the Crown could establish beyond reasonable doubt that the accused did not believe it was necessary to apply the force that caused Mr Tozer’s death in order to defend himself: s 421(1)(c) of the Crimes Act. If the Crown failed to do so, the accused remained guilty of manslaughter, pursuant to his plea to the third count.

4. [4]

   At the outset of the trial, following a voir dire hearing, I ruled that certain tendency evidence that the Crown proposed to lead was admissible for that purpose: R v Fuller (No 2) [2024] NSWSC 1208. During the trial, I ruled that certain edited audio recordings of phone calls in which the accused was a party while on remand, that the Crown proposed to lead, were admissible: R v Fuller (No 3) [2024] NSWSC 1294.

The structure of the verdict judgment

1. [5]

   The first part of the verdict judgment comprises certain fundamental directions of law by which I am bound.

2. [6]

   The second part is a review of the evidence in the Crown case, almost all of which was not challenged by the defence, which facilitates, for the most part, a narrative form of review of the Crown case. The accused did not give evidence or call witnesses in the defence case. I will not review all of the evidence in the trial, but rather, the evidence that the parties have identified to be of some significance, and additional evidence that I consider to be significant.

3. [7]

   The third part is a review of the evidence that emerged in the Crown case as to the accused’s personal history and childhood and adolescent exposure to domestic and social violence, which is relied upon by the defence as being relevant to the accused’s belief as to his safety at the time that he inflicted the fatal injury or injuries upon Mr Tozer.

4. [8]

   The fourth part is a review of the closing addresses of counsel as to their respective cases.

5. [9]

   The fifth part comprises further directions of law that I have followed in the course of my deliberations.

6. [10]

   Finally, the sixth part is my deliberations, findings of fact and the verdict.

1. Initial directions of law

1. [11]

   Pursuant to s 133(3) of the Criminal Procedure Act 1986 (NSW), I make the following directions by which the Court is bound.

2. [12]

   The accused is presumed to be innocent, unless and until the Court is persuaded by the evidence that he is guilty of the offence charged beyond a reasonable doubt. Those words have their ordinary, everyday meaning.

3. [13]

   The Crown bears the onus of proving the charge of murder and doing so beyond reasonable doubt. The accused is presumed to be innocent and has no obligation to prove anything. As is apparent from s 419 of the Crimes Act, the onus and standard of proof remains with the Crown when the defence contends that the accused is not criminally responsible for murder on the basis of excessive self-defence.

4. [14]

   In assessing the evidence of each witness, the Court must decide if their evidence was both honest and accurate. A witness may be honest, but mistaken in the evidence they give, and not realise they are mistaken. That is, they believe the evidence they give to be true, but they are wrong. If the Court concludes that in some part or parts of their evidence a witness was not doing their best to tell the truth, then the Court needs to determine to what extent, if at all, that conclusion should affect the ultimate assessment of that witness’s evidence.

5. [15]

   Accordingly, in relation to a witness’s reliability, an honest witness may be inaccurate, either wholly or partly, and to that extent, their evidence will be wholly or partly unreliable. A witness who is honestly telling the truth might have a tendency, even unconsciously, to exaggerate, or to distort, or to simply mistake the truth. In making its assessment, the Court brings to bear its real life experience.

6. [16]

   From the evidence that I accept, I am entitled to draw inferences. An inference is simply a conclusion of fact which can be rationally drawn from a combination of other proven facts. I must exercise extreme care in drawing inferences. If the evidence rationally gives rise to more than one inference, accepting only one of those inferences as a conclusion of fact would be drawing an unjustifiable inference. I must examine a possible inference to ensure that it is a justifiable inference.

7. [17]

   The Crown case included audio recordings captured by CCTV cameras; a telephone call to 000; multiple telephone calls made from prison by the accused; audio captured by police body worn videos (BWVs); and a formal police interview recording. These audio files, which are exhibits tendered in the trial, are accompanied by transcripts of what is recorded.

8. [18]

   I direct myself that the evidence in each instance is the recording and the transcript of it is an aide memoire. Accordingly, if there is a discrepancy between what I hear on the recording and what appears in the transcript, I disregard that part of the transcript. This direction applies to all transcripts of recordings that were tendered in the trial. The same direction applies to the transcript of the trial itself; the evidence is what was said in Court, not what is in the transcript.

2. The case for the Crown

1. [19]

   The accused inflicted the fatal injury, or injuries, upon Mr Tozer on the evening of 28 July 2021 at some time between about 6:41pm and 6:54pm. The accused was 27 years old and Mr Tozer was 61 years old. There was a separate incident in the hour beforehand involving the accused and Gregory Hunt, which is the basis of the intimidation count. The Crown led evidence of this incident in its case on the murder count, to seek to establish that the accused was in an angry and aggressive mood by the time that he and Mr Tozer crossed paths. There was no evidence that the accused, Mr Hunt and Mr Tozer knew each other before that evening.

2. [20]

   A statement by a friend of the accused, Khan Mills, dated 29 July 2021, was tendered (Mr Mills is deceased). Mr Mills stated that he and the accused were “best mates”. At about 2:30pm on 28 July 2021, the accused visited Mr Mills at his home at West Kempsey, bringing with him “a 10 pack of Jim Beam Double Serve bourbon cans”. Another of Mr Mills’ friends, named James, was present. Mr Mills said that during the time they were together, he thought that he drank two cans of the Jim Beam, while the accused and James had one can each. The accused left “sometime between 4:00pm and 5:00pm”, saying he was “going home”. Mr Mills said that the accused left three of the original 10 cans in Mr Mills’ fridge and took the remaining three cans with him. Mr Mills stated that while the accused was there, “both James and I smoked some cannabis … I can't recall if Connor smoked any cannabis”. After the accused left, Mr Mills found the accused’s mobile phone under a cushion. At about 7:34pm, he sent a message to the accused’s mother, Tracey Williamson, asking her to let the accused know that he had the accused’s phone.

3. [21]

   West Kempsey is about 34km south-west of South West Rocks. The most direct route from there to South West Rocks is by Macleay Valley Way, through Frederickton, turning right into Plummers Lane at Clybucca. I take judicial notice of the fact that, by that route, Frederickton and Clybucca are about 8km and 21km respectively from West Kempsey. After about 6km, Plummers Lane reaches and follows the left bank of the Macleay River, crosses the river near Jerseyville and proceeds onto South West Rocks.

4. [22]

   The accused had a white four-door Hyundai Getz, which is a small hatchback (the Getz), that he was driving that evening. A light bar was fitted to the centre of the front grille, which provided powerful illumination when turned on. Closed circuit television (CCTV) at a location in Frederickton captured the Getz travelling north on Macleay Valley Way at about 5:54pm. It was not in dispute that the accused was driving the Getz at the time. I note there is no evidence of what the accused did between when he left Mr Mills’ home and 5:54pm. The Getz was captured by CCTV in Plummers Lane, Clybucca, about 300m past the intersection with Macleay Valley Way, at about 6:04pm.

5. [23]

   That evening, Mr Hunt was also driving from Kempsey to his home in South West Rocks, in a Suzuki Alto (the Alto), which I note is also a small hatchback. He drove on Macleay Valley Way through Frederickton and turned onto Plummers Lane. He said, in evidence, that he saw that a “little white car” had pulled up at the intersection of Plummers Lane and Menarcobrinni Road, which I note is about 550m past the intersection of Macleay Valley Way and Plummers Lane, in a position that blocked that road. He said:

6. [24]

   Mr Hunt said the reason he dropped his high beam was to give the man that he saw urinating “a bit of privacy”. Mr Hunt had a “quick look at him. And then … just went about my way”. There was no dispute between the parties that the driver of the other car who Mr Hunt saw urinating was the accused.

7. [25]

   In cross-examination, Mr Hunt agreed that when one turned right off Macleay Valley Way and proceeded on to the intersection of Plummers Lane and Menarcobrinni Road, one drove through two tight bends. He said that he was driving at “60, 65”, and when he saw the man, he reduced his speed “a little bit”. He agreed that in his statement to police, he stated, “I was crawling along in my car because of the bends” and when he saw the man urinating, “I crawled [past] in my car and looked at him as I went [past]”.

8. [26]

   Mr Hunt continued:

9. [27]

   Mr Hunt said the car did not overtake him and was so close behind him that its headlights disappeared from his view. The CCTV at Jerseyville captured the Getz, with its light bar on, being driven closely behind the Alto. Mr Hunt decided to drive directly to South West Rocks police station, which is located on Memorial Avenue in the downtown part of South West Rocks. I note that the distance from the intersection of Menarcobrinni Road and Plummers Lane to South West Rocks is about 13km. The police station would appear to be about an extra kilometre past the town entrance. The main road into town, and to the town centre is Gregory Street, which runs in a north-south direction.

10. [28]

    Mr Hunt said:

11. [29]

    Mr Hunt said that the driver’s tone was “aggressive”. He drove off. Mr Hunt sat there for “probably a couple of minutes” and then drove home.

12. [30]

    The Crown read a statement of Joshua Wilson, dated 3 August 2021. Mr Wilson stated that on the evening of 28 July 2021, he was driving out of the Coles supermarket (which has driveway access onto Gregory Street) and was about to turn north (to the right) onto Gregory Street when he saw a small hatchback, which he thought was pink, heading north and apparently being tailgated by “a small white hatch”. He stated, “During that time, the white car had verged left a few times”. At Landsborough Street, both cars turned right and Mr Wilson followed. They then turned left into Memorial Avenue with the second car still closely behind. Mr Wilson’s statement continued:

13. [31]

    Mr Wilson arrived home “around 6:30pm or a little later”. A statement of another witness, Diane Yeo, dated 30 July 2021, was read. She stated that on 28 July 2021 at about 6:25pm, she was driving along Memorial Avenue past the police station, which I note was in the opposite direction to that in which Mr Hunt and the accused were facing. She said:

14. [32]

    The police station had CCTV onto Memorial Avenue, which captured a vehicle pulling up outside the station at 6:19pm, which is accepted to be the Alto. The Getz can be seen pulling up alongside it, and drives on seconds later, with another car closely behind it. After about 30 seconds, the Alto moves off as well.

15. [33]

    CCTV cameras at various locations around South West Rocks captured the Getz travelling from the police station via Paragon Avenue to the address in South West Rocks where the accused resided with his mother, 10 Albert Harrower Crescent (Number 10), which is approximately 1.5km from the police station. He collected his dog, a Rottweiler named Nova, and drove back to the police station, by which time Mr Hunt had driven off.

16. [34]

    By way of background, Albert Harrower Crescent was a cul-de-sac with about ten houses, lying approximately north-south. Number 10 was a single storey brick and tile house on the western side of the street, facing east, with a straight driveway running parallel to the northern boundary (on the right side, facing the house from the street), which led to a garage that was incorporated into the dwelling. A gate at the northern side of the building gave access to the backyard. A metal fence marked the northern boundary of the property, extending along the full length of the front yard to the footpath (the metal side fence). The property did not have a front fence, so that there was a continuous lawn and garden from the front of the house to the street guttering. There were three mature palm trees to either side of the driveway on the property and three other palm trees and shrubbery elsewhere in the front yard. A concrete path led from the driveway alongside the front of the house and up five steps to a small patio, and the screen and main doors.

17. [35]

    A short dead-end street, Greenway Close, with about another ten houses, branched off the end of Albert Harrower Crescent to the east (to the left, as one faced down Albert Harrower Crescent). Albert Harrower Crescent ran off Simpson Street, which ran approximately east-west. Number 10 was one house down from the intersection. The property between Number 10 and Simpson Street, that is, the corner block, was 18 Simpson Street, which was a single storey house in which a medical practice was operating. The property immediately alongside 18 Simpson Street to the west was a single-storey residence, 20 Simpson Street. The backyards of both buildings backed on to the metal side fence on the northern boundary of Number 10.

18. [36]

    The relevant events at Number 10 occurred at night-time in the front yard, and the adjacent footpath and gutter. The nearest streetlight to Number 10 was located on the western footpath of Albert Harrower Crescent, approximately 23m north of the northern boundary of Number 10. It was not functioning on the night.

19. [37]

    The accused and Ms Williamson were the only residents at Number 10. On the night of his arrest, the accused told police he had been living there for about eight months. Ms Williamson had two jobs: day-time employment in a local caravan park; and casual evening work at a Chinese restaurant in Memorial Avenue, South West Rocks. On 28 July 2021, around 5pm, she arrived home from her first job and drove off at about 5:30pm to start work at the Chinese restaurant.

20. [38]

    There were two alternative primary routes from the South West Rocks downtown area to Albert Harrower Crescent, via either Gregory Street or Mitchell Street, both of which run roughly north-south and intersect with Simpson Street. Both routes would require the vehicle to drive past 18 and 20 Simpson Street, then turn right (south) into Albert Harrower Crescent.

21. [39]

    The property at 20 Simpson Street had a CCTV that faced Simpson Street and captured images of passing vehicles (the Simpson Street video). A CCTV on an eave at a rear corner of 18 Simpson Street that was pointed in the direction of Albert Harrower Crescent was able to capture sounds from that direction but not images, the view being blocked by a plant growing close to the camera (the CCTV audio). A CCTV camera at the rear of 20 Simpson Street that was directed towards its backyard captured grainy images of a limited section of the metal side fence and the upper bodies of people moving along the Number 10 driveway (the CCTV driveway video). An edited form of the CCTV captured from 18 and 20 Simpson Street on 28 July 2021 was tendered into evidence.

22. [40]

    The CCTVs for each building were connected to a hard drive for the respective properties that retained images and sounds captured by the cameras. The accuracies of the dates and times that appear on the respective CCTV recordings were examined by Nathan Brown, an IT expert, whose three statements were read in the Crown case. His evidence was to the effect that the dates and times that appear on the recordings from the hard drive on 18 Simpson Street were inaccurate, but those on the hard drive for 20 Simpson Street were accurate. The date stamp inaccuracy on the 18 Simpson Street camera was three weeks. There was conflicting evidence in the trial regarding the time stamp inaccuracy on the 18 Simpson Street camera. The statement of Mr Brown recorded the inaccuracy as seven hours, whereas the schedule of the accuracy of times of CCTV camera evidence in the trial prepared by the officer-in-charge of the investigation into the death of Mr Tozer, Detective Sergeant Lorenda Barber (Det Sgt Barber), recorded the inaccuracy as being 15 hours and 14 minutes. I note that although Mr Brown recorded his observation of the time stamp inaccuracy as being seven hours, his calculation of the discrepancy aligned with the figure of 15 hours and 14 minutes in Det Sgt Barber’s schedule. In any event, the CCTV times in this summary of the Crown case, concerning events at Number 10, are taken from the time stamps on the CCTV video recorded from 20 Simpson Street, which, as noted above, was accurate.

23. [41]

    When the accused returned home to collect his Rottweiler, he took the Mitchell Street route from the police station to his home. The Simpson Street video captured the Getz driving past at 6:22pm. It turned into Albert Harrower Crescent and the driveway of the accused’s residence. It was common ground that no-one else was home. The Getz was captured by the Simpson Street video as being driven away at about 6:28pm.

24. [42]

    In the intervening six minutes, the CCTV audio captured sounds, including the voice of the accused, apparently talking to himself and shouting. Not all of what the accused said is discernible. I am able to hear the sound of the Getz pulling into the driveway immediately after it drives past 20 Simpson Street and, on the CCTV driveway video, see the headlights from the Getz light up the driveway beyond the metal side fence and then turn off. One can hear a dog barking and the characteristic sound of a door closing. There is the sound of about 25 impacts in quick succession, inaudible yelling by the accused, the sounds of a screen door and another door slamming, then the words “Jump on his head right now before he gets home to his wife … let’s go, come on, inside” (apparently speaking to Nova), the sound of a car door closing, then the words “Before he gets home to his wife”, followed by more inaudible words, the sound of a car door opening and closing, and the ignition starting. The Getz is then seen, on the Simpson Street video, to leave and drive west along Simpson Street.

25. [43]

    CCTV in various locations captured the Getz returning to the police station via Mitchell Street, driving past it at 6:28pm and turning left at the next intersection into Paragon Avenue.

26. [44]

    A CCTV in the downtown area afforded a front-on view of the Getz pulling up alongside a bottle shop on Paragon Avenue (known as South West Rocks Cellars) at 6:29pm. The accused’s dog occasionally pokes its head through the open front passenger window and rests its chin on the sill, thereby establishing that the window was fully down. The driver’s window is about a third of the way down. The left-hand side mirror is in the extended position.

27. [45]

    The accused is seen to alight from the Getz and disappear from view near the doorway to the bottle shop. He is wearing a turned-back cap, an elbow-length loose shirt, knee-length shorts and shoes. He has a small shoulder bag looped across his chest from his left shoulder. After about ten seconds, he returns to the Getz and leans into the car through the front passenger window, apparently rummaging around in the back seat. He returns to the door of the bottle shop, staying just inside. After about four minutes, he waits alongside the Getz, receives a carton of cans from the staff and, right on 6:34pm, he drives away. The light bar is off.

28. [46]

    Shayne McGrath, who was an employee of the bottle shop, made a statement dated 29 July 2021, that was read in the Crown case. He stated:

29. [47]

    A statement by Sonja Boschke, dated 1 August 2021, was also read. She stated:

30. [48]

    Downtown CCTV cameras captured the Getz moving off and circling around the streets of the downtown area, including a location that gave it a view of the road outside the police station again, before turning south onto Gregory Street, apparently from Livingstone Street, and driving south past Paragon Avenue at 6:37pm.

31. [49]

    A few minutes earlier, Mr Tozer had finished his shift, half an hour late due to COVID-19 duties, as an operator in the United service station, which was situated on Gregory Street about 1km south from the intersection with Paragon Avenue. A complex of retail shops and an IGA supermarket were located alongside and behind the service station, utilising the same driveways off and onto Gregory Street as the service station. A CCTV inside the service station cashier area captured Mr Tozer walking away from the glass doors, apparently having locked up, carrying his small black backpack and white lunch bag, [1] disappearing from sight in the direction of his car, which was a Ford Falcon XR8, registration number DNP 45V (the XR8). The XR8 was parked immediately outside in its usual spot on Gregory Street, between the vehicle entrance and exit driveways.

32. [50]

    Mr Tozer’s wife, Lee-Anne Tozer, gave evidence that the XR8 was in a “very good condition” and was Mr Tozer‘s “pride and joy”. She thought that if the XR8 was deliberately damaged, Mr Tozer would have been upset. She saw it parked in its usual spot when she drove past the United service station at 4:30pm that afternoon.

33. [51]

    In her statement, Ms Boschke stated that she also had a casual shift at the United service station. She stated that, after she saw the accused drive away from the bottle shop:

34. [52]

    A statement by Brooke Hardy, dated 1 August 2021, was read. Ms Hardy said that she paid for a takeaway meal from the Chinese restaurant in Memorial Avenue at 6:36pm, according to her internet banking records. She entered her car that was parked in the same street:

35. [53]

    A CCTV camera that was located on the front of a building alongside the northern end of the United service station (the “Outdoor Adventure” shop CCTV) captured the Getz driving past at 6:38:42pm. At that location, Gregory Street was a straight two-way road, which was single-lane in both directions, with a parking lane marked on either side with a white unbroken line. As the Getz disappears from view to the south, its nearside wheels can be seen to pass over the parking lane line.

36. [54]

    A CCTV that was positioned behind the United service station captured the Getz disappearing from view on the northern side of the building and reappearing three seconds later on the southern side. It is the Crown case that in those three seconds, the left-hand side mirror of the Getz impacted the driver’s side mirror of the XR8. The Getz did not stop. Mr Tozer immediately gave chase, driving at speed. The Getz turned left into Simpson Street, but rather than turning the next right into Albert Harrower Crescent, the Getz turned left into Mitchell Street and drove north, turning into a side street and then back again down Mitchell Street, into Simpson Street and then into Albert Harrower Crescent. The Simpson Street video captured the Getz driving past with all its lights off and the XR8 10 seconds behind. The accused pulled up in the driveway of Number 10 at 6:41:20pm. Seconds later, Mr Tozer pulled up at an angle across the driveway entrance.

37. [55]

    There was a period of about 19 minutes between the arrival of Mr Tozer at Number 10 and the attendance of neighbours upon Mr Tozer at around 7pm, who lay unconscious and severely injured in the gutter alongside the driveway to Number 10. Police and ambulance officers arrived about half an hour later. Mr Tozer was pronounced deceased at 10:57pm, without having regained consciousness.

38. [56]

    Other than accounts subsequently provided by the accused to neighbours, family members, friends and police, there is no direct evidence as to the circumstances of the infliction of the injuries on Mr Tozer; that aspect of the Crown case is circumstantial in nature. The elements of evidence that contribute to that circumstantial case for the Crown include the CCTV audio on which impact and other sounds and some speech during the confrontation may be heard, the CCTV driveway video, the autopsy report of Dr Lorraine du Toit - Prinsloo, admissions made by the accused, forensic investigations and some tendency evidence.

39. [57]

    As noted, the case for the defence is that the accused inflicted the fatal injury or injuries upon Mr Tozer in a belief that it was necessary for him to do so in self-defence, although he accepted by his plea to the third count that the conduct was not a reasonable response in the circumstances as he perceived them. From his first interactions with others following the confrontation, the accused admitted that he was responsible for the injuries suffered by Mr Tozer, and that he assaulted Mr Tozer, among other reasons, in order to defend himself and his mother. Other evidence relied upon by the accused as to what occurred and why, from his perspective, included statements heard on the CCTV audio by him that he was scared for his safety and that he had been threatened; evidence as to the social, emotional, moral and psychological environment in which he grew up; evidence as to items that the accused may have mistaken for a weapon that he believed Mr Tozer had on him; and some statements he made to family and friends while on remand.

40. [58]

    The first people to arrive at Number 10 after the confrontation came from the residence on the eastern corner of Simpson Street and Albert Harrower Crescent, that is, diagonally across the road from Number 10, which was 16 Simpson Street. They described Mr Tozer as unconscious, lying on the road, face up, with his head in the gutter on or immediately alongside a drain grate (the grate), which, according to a computer aided diagram (CAD), was about 2m north of the driveway. His tracksuit pants were pulled down and his right shoe and his broken glasses were on the road to the south of where his body lay, that is, closer to the XR8. Multiple items were scattered around that area.

41. [59]

    At about 10pm that night, there was a storm, that was described by Det Sgt Barber as a “torrential downpour”. A gazebo was erected over part of the crime scene, but a video taken during the storm, which was in evidence in the trial, shows water flowing along the gutter into the grate and items in that vicinity being exposed to the rain.

42. [60]

    I have listened to the CCTV audio with noise cancelling headphones and combined my understanding of what can be heard with the times recorded on the CCTV driveway video, as reproduced on a compilation tendered in the trial: Exhibit G1. In my opinion, the voices of Mr Tozer and the accused are distinctive from each other, so that it is relatively easy to attribute discernible words to each of them. There is a voice that is distinctive from both, which I attribute to a third person. There is limited visibility in the first few minutes of, effectively, shadow-like figures over the top of the metal fence, captured by the CCTV driveway video. I have summarised my findings as to the attribution of the content of the audio and the CCTV driveway video in a table below.

43. [61]

    Although the voice of a third person is audible on the CCTV audio, despite police canvassing the surrounding residences in Simpson Street, Albert Harrower Crescent and Greenway Close, no one admitted to witnessing any part of the physical confrontation.

44. [62]

    Ben Pierce is a young male who lived in Simpson Street a few houses east of the intersection with Albert Harrower Crescent. He was captured by the Simpson Street video driving east at 6:40pm, that is, a minute before the Getz and XR8 arrived. In evidence, he said he parked his car when he heard cars revving and driving fast into Albert Harrower Crescent. He said:

45. [63]

    Police examined Mr Pierce’s phone records which indicated that he made a wi - fi call at 6:45:19pm, but could not determine who it was made to. Mr Pierce became uncooperative with investigating police, in particular, he declined to make available his phone log.

46. [64]

    Leave was granted to the Crown Prosecutor pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Pierce, who maintained that he did not walk around the corner into Albert Harrower Crescent, explaining, “I’m not a hero. I didn’t want to put myself in danger”.

47. [65]

    There was evidence of some neighbours hearing argument or passing Number 10 after the physical confrontation had apparently ended and before the accused went to 16 Simpson Street.

48. [66]

    A statement of Peta-Lee Watt, dated 29 July 2021, was read. Ms Watt drove north along Albert Harrower Crescent that evening and noticed what must have been the XR8 parked diagonally across the driveway with its headlights on and its motor running, and a man lying on his back on the ground. She described a second man:

49. [67]

    Ms Watt did not stop because she had her young children in her car but immediately phoned the police and returned after dropping off her children, by which time the street was cordoned off. The Simpson Street video captured the vehicle that police believed to be that of Ms Watt driving from the intersection of Simpson Street and Albert Harrower Crescent at 6:53pm, that is, well after the voice of a third person is heard.

50. [68]

    Daniel Ferrari was a resident at 8 Albert Harrower Crescent. He drove past Number 10 en route to a supermarket, passing the Simpson Street video at 7pm. He noticed the XR8 with its headlights on. He said:

51. [69]

    Mr Ferrari said that he assumed the person lying on the ground was “drunk or passed out”. He did not see anyone else. I will return to his evidence later in the judgment.

52. [70]

    Kerry Clarke resided at 2/5 Albert Harrower Crescent. In a statement dated 30 July 2021, she said, as to the events that night:

53. [71]

    The post-mortem examination of Mr Tozer’s body was conducted by Dr du Toit-Prinsloo. Mr Tozer’s height was 1.76m (about 5’ 9”) and he weighed 94kg. She established the cause of death as blunt force head and abdominal injuries. She did not think that the overall injuries, and in particular, injuries to Mr Tozer’s brain, were survivable.

54. [72]

    It is apparent from Dr du Toit-Prinsloo’s evidence that Mr Tozer suffered extensive abrasions, lacerations and bruising to his head, neck, arms and abdomen, as well as a significant injury to his right testicle. He had fractures to his skull, nasal bones, and his hyoid bone, in his neck. The following is a more detailed account of Dr du Toit-Prinsloo’s evidence of those injuries, contained in her autopsy report, which was an exhibit:

55. [73]

    Dr du Toit-Prinsloo said that subconjunctival haemorrhages in the eyes were consistent with blunt force having been applied to the eyelids.

56. [74]

    The internal injuries to Mr Tozer’s head included linear fractures to the left orbital plate, which is the “thin plate that covers the eye”. The results of a neuropathological examination of Mr Tozer’s brain were described by Dr du Toit-Prinsloo:

57. [75]

    Dr du Toit-Prinsloo was asked to explain how a traumatic axonal injury is caused. She responded that it was:

58. [76]

    An internal examination of Mr Tozer’s neck disclosed “haemorrhages in several of the muscles in the anterior aspect of the neck”, fractures of the hyoid bone and associated haemorrhage. Dr du Toit-Prinsloo considered that these were caused by the application of blunt force to the neck.

59. [77]

    Abdominal injuries included “confluent areas of bruising to the right side of the abdomen and the right inguinal canal and scrotum”. The report noted the presence of numerous lacerations in the mesentery of the small bowel and in the mesocolon of the ascending colon and haemorrhage surrounding the right testes.

60. [78]

    Features of blunt force injuries were observed on the arms. A subcutaneous dissection of the arms “showed confluent areas of haemorrhage involving the posterior aspect of the entire right arm, the posterior aspect of the left forearm and the left deltoid region”. It was noted that the distribution of some of those injuries was in keeping with so-called defence injuries.

61. [79]

    No alcohol was detected in Mr Tozer’s blood. Dr du Toit-Prinsloo concluded:

62. [80]

    Shortly before 7pm, the accused approached 16 Simpson Street and asked the occupants if he could borrow a phone to call for assistance. The house had a gate entrance onto Albert Harrower Crescent. Karen Irvine resided there with her then partner Jamie Young. Ms Irvine’s daughter Clancey and her partner, Joel Cooper, were dinner guests that night. Intending no disrespect, I will refer to Karen Irvine and Clancey Irvine as Karen and Clancey respectively, to avoid confusion.

63. [81]

    The four occupants went across the road and provided assistance to Mr Tozer, Mr Cooper assuming the role of the primary caregiver and Clancey contacting emergency services, for a period of approximately half an hour, until police and ambulance services arrived at the scene. As noted, Mr Ferrari provided assistance as well.

64. [82]

    The accused gave various explanations to the five neighbours as to where and how he first encountered Mr Tozer that night, but consistently said that following a disagreement elsewhere, the other man, who was a stranger, chased the accused home, got out of his car and “pulled a knife” on the accused. The accused hit the other man, variously referring to elbowing, punching and stomping, and noting that he was a kickboxer. The accused said the knife had fallen into the gutter when he hit the other man. The accounts of those five people are considered in more detail.

65. [83]

    The first person that the accused spoke to at 16 Simpson Street was Mr Cooper, who said in evidence that the accused came to the gate of the house, shirtless, wearing board shorts and shoes, “asking for some assistance and asking to borrow my phone”. Mr Cooper’s evidence as to his first conversation with the accused was as follows:

66. [84]

    Mr Cooper went across the road and saw Mr Tozer lying on the road on his back with his head in the gutter and his feet facing across the street. He and the other witnesses who came across from 16 Simpson Street described Mr Tozer as being unconscious, having difficulty breathing, and having a swollen and bloodied face with an obvious deep laceration to the back of his head.

67. [85]

    Mr Cooper said that he and others from 16 Simpson Street rolled Mr Tozer onto his side, into the recovery position. He was asked where the accused was, when they did this. He replied:

68. [86]

    And later:

69. [87]

    Mr Cooper said that the accused’s “story” about the chain of events leading up to the altercation changed as he recounted it to Mr Ferrari. Mr Cooper heard the accused say to Mr Ferrari that he had been “down the street seeing his mum” when there “was a bit of a road rage incident, and the victim had followed him home”.

70. [88]

    When asked whether there was anything else said by the accused when he was looking around for some personal items, Mr Cooper testified that during another conversation later on, the accused’s narrative:

71. [89]

    Mr Cooper also said that the accused’s “delivery” as to his narrative of what had happened was slightly different, particularly in relation to the details of the actual assault on Mr Tozer:

72. [90]

    Mr Cooper said that about 20 minutes later:

73. [91]

    Mr Cooper agreed in cross-examination that the form of assistance that the accused offered on that occasion was an ice pack that he had brought out of the house. Mr Cooper said he told the accused, “I’m not sure what we would do with the ice pack so we’ll just, we’ll just continue to monitor him”.

74. [92]

    When Clancey first approached the accused at the gate, Mr Cooper and the accused were conversing. She recalled the accused saying, “Can I borrow a phone? I’ve knocked someone out over here. He’s laying unconscious in my driveway”. Having refreshed her memory by way of her statement to the police made on the night of 28 July 2021, Clancey also recalled the accused saying at that point:

75. [93]

    She recalled the accused saying that the other man had been lying unconscious in the gutter for about 20 minutes. Thereafter, Clancey said that she went inside to retrieve her phone and to call 000, at which point, she went back out again onto the road where Mr Tozer was lying unconscious. She said that after they put Mr Tozer in the recovery position, they put a towel under his head to apply pressure to the open wound at the back of his head and Mr Cooper cleared his mouth to assist his breathing.

76. [94]

    She recalled the accused saying that “he’d been followed home, and the injured male had tried to stab him; and that the knife had fallen into the gutter”. She “had a quick look around at the gutter”, however, she “couldn’t see any knife sitting in the gutter itself”.

77. [95]

    Clancey also recalled the accused coming and going from the residence and picking some items and “putting [them] in the cars”, including the other man’s car keys which the accused threw into that man’s car. In cross-examination, she agreed that she did not have a recollection of the accused putting any items in his own car. She also agreed to the proposition, put to her during cross-examination, that although she had specific recollection of particular items, being pearls from a broken necklace, a pair of glasses with a shattered lens, and car keys, because of the nature of her focus on attending to Mr Tozer, there could have been other items that the accused may have picked up.

78. [96]

    She recalled that the accused’s demeanour was calm. She remembered that the engine of one of the cars was running, but she was unsure which one it was.

79. [97]

    Mr Young said that he first spoke with the accused that night at the gate of 16 Simpson Street, when Clancey summoned him there. He saw the accused, who he knew as a neighbour. He said:

80. [98]

    Mr Young was asked to provide further detail as to what the accused said at the time that they were still at the gate of 16 Simpson Street, including the particular language that he used at the time, to which Mr Young responded:

81. [99]

    Mr Young described the accused thus:

82. [100]

    Mr Young noticed blood on the accused’s right shoe.

83. [101]

    Mr Young went across the road and saw that Mr Tozer was lying in the crucifix position with his head in the gutter on a drain. He said, “His right shoe was off beside him. His tracksuit pants were down around his ankles. He had a pair of boxer shorts on”. In cross-examination, Mr Young agreed that in his statement made that night he said the tracksuit pants were down around Mr Tozer’s knees. The XR8 was parked at an angle across the front of the driveway with its driver’s door open and its lights on, but the motor wasn’t running.

84. [102]

    After Mr Young saw Mr Tozer, he asked the accused what had happened:

85. [103]

    Mr Young said that when he and Mr Cooper inquired into the whereabouts of the knife, the accused responded by saying that “it must’ve fell in the gutter, down the drain or something”.

86. [104]

    Karen said that Clancey told her of an incident across the road, at which point she went over to assist. Pursuant to s 32(3) of the Evidence Act, she read out certain parts of her statement that was made to police on the night of the incident, in which she recounted the accused saying:

87. [105]

    When asked about the accused’s behaviour prior to his arrest, Karen said that “he was doing a lot of pacing up and down”, and that he went back inside the house “at some stage”. When asked whether she observed any objects in the accused’s hands, she recalled:

88. [106]

    Karen recalled the accused saying that the other man had “come at him with a knife”. She did not recall what was said by the accused about why the altercation occurred. She recounted the accused saying, “something about the knife in the gutter or disappearing down the drain” and, in reference to the other man’s injuries, “I’ve seen much worse”. She agreed that in her statement she had recorded an offered act of assistance by the accused; he brought an icepack from the house, but was told that it would not be needed.

89. [107]

    On Mr Ferrari’s return from the supermarket, which was captured by the Simpson Street video at 7:07pm, he noticed that the man that he observed earlier lying on the street was in the same position, and his neighbours from 16 Simpson Street were there. He was told by another neighbour that there was something wrong, so he pulled over to help. He assisted Joel Cooper to get Mr Tozer into the recovery position.

90. [108]

    The accused came out of the house, to where Karen, Clancey, Mr Young, Mr Cooper and Mr Ferrari were. Mr Ferrari asked the accused, “what happened? Was he hit by the white car?”, to which the accused replied, “Nah, mate … we had an argument at the pub, he followed me home … He tried to stab me”.

91. [109]

    Mr Ferrari said that the accused said, “I’m a kickboxer. I smashed him. I kicked him and … I jumped on him … What do you expect me to do? He tried to - he had a knife”. When asked what the accused’s exact words were about a threat to himself, Mr Ferrari said:

92. [110]

    Mr Ferrari said that when he arrived, the engine of the XR8 was running. After Mr Ferrari’s initial conversation with the accused, the accused was:

93. [111]

    Mr Ferrari decided to help the accused look for the mobile phone and, at the same time, Mr Ferrari would look for the knife, “so I was going to try and secure the knife and obviously get his mobile phone”. Mr Ferrari extensively searched an arc of the front yard area around the scene and found neither a knife nor a mobile phone.

94. [112]

    After the search, he saw the accused lean into the XR8 and turn off the engine and headlights. He was unsure if the accused also closed the car door. The accused then walked back into the house at Number 10.

95. [113]

    For much of the 000 call, which was made by Clancey at 7:07pm, she was positioned alongside Mr Tozer and those who were administering first aid to him. On the call, the voice of the accused is captured in the background stating, “Mate, that knife’s in the bottom of there” and, shortly afterwards, stating, “I went up town, I got called a white cunt, then got followed home with a knife, like … are you serious, bro, my, my dad’s Aboriginal and shit”.

96. [114]

    The Crown case includes admissions that were made by the accused prior to being cautioned as a suspect. No objection was taken to those admissions, which were generally repeated after he was cautioned. The accused continued to give differing accounts of his first encounter with Mr Tozer. He initially told police that the other man pulled a knife on him and tried to stab him, claiming he had stab marks on his body. The accused said he asked the other man to leave, but he would not do so. Over the course of the night, the accused’s account became that the other man got out of his car holding “something”, that the accused thought he was going to be stabbed and that he only hit the man three times, a left and right punch and a kick to his head, with some variations. The accused’s accounts to the police are now reviewed in more detail.

97. [115]

    The first emergency responders to arrive at Number 10 were Senior Constable Andrew Black (SC Black) and Senior Constable Chloe Thompson (SC Thompson). The Simpson Street video captured their arrival at 7:26pm.

98. [116]

    Both officers have since left the police force. A statement by SC Black, dated 6 February 2023, was read, in which he said that when he and SC Thompson arrived, he turned on his BWV, which commenced at 7:28pm, while he was in conversation with Mr Cooper. SC Black stated that he was focussed on assisting the others already there in the administration of first aid to Mr Tozer. He recalled that someone alerted him to the accused coming out of the house and that he went over to the accused and arrested him, but little else. Shortly afterwards, at 7:34pm, the first ambulance arrived. Later, Sergeant Damien Goddard (Sgt Goddard) and Sergeant Nicole Ward (Sgt Ward) also arrived at the scene.

99. [117]

    The BWV activated by SC Black was an exhibit in the trial. At 7:28pm, he approached the accused, who was standing at the back of the Getz, which was parked up the driveway behind another car (a black Jeep). The accused was wearing shorts, shoes and a small shoulder bag, with the strap over his left shoulder and the bag on his right side, as it was at the bottle shop, if indeed it was the same bag. His torso was unclothed and he was in the process of putting on a long-sleeve shirt. SC Black informed the accused that he was being video-recorded and asked him what happened. The accused replied, “Old cuz followed me home with a knife … Jumped out the front of my house and then tried to pull a knife on me”. The accused was then cautioned, and he continued, “He tried to stab me”. The accused declined to say anything further and went to walk away, at which point SC Black informed him that he was under arrest for an assault. The accused then continued, “What, because he tried to stab me ... I come home with my dog and he tried to stab me”. Shortly after, at 7:30pm, the accused was placed in the caged back of a police vehicle, at which point he said, “look, there's a stab mark in me from where he tried to”.

100. [118]

     A BWV activated by SC Thompson was also an exhibit. It captured the same conversation and continued for another few minutes beyond what was recorded by SC Black’s BWV, including the accused saying, “He chased me in my driveway with a knife” and later, the following exchange with SC Thompson:

101. [119]

     Sergeants Goddard and Ward arrived at Number 10 at 8:32pm. Sgt Goddard noticed that the driver’s door of the XR8 was open. Sgt Goddard activated his BWV and approached the accused, who was seated in the caged vehicle. He cautioned the accused, and asked him what had happened. The accused replied:

102. [120]

     When asked what happened then, the accused continued:

103. [121]

     When asked how many times he hit Mr Tozer, the accused said, “three … Left, right and a head kick. Because I train kickboxing”. He was asked, “Is this where it happened, just where he is now”, referring to the location where Mr Tozer was found lying unconscious. The accused replied, “Just where he is now”.

104. [122]

     Sgt Goddard asked which bottle shop the accused went to. The accused replied, “I went to the crazy man, well not the crazy man bottle shop just up from Jack’s and then I went to the drive thru”. The accused said that he “told my mum I’d get her a six-pack because she works two jobs … I went to go do that and then that happened”. He then repeated the words said to him at the drive through, which on his account were, “You white cunt, get out of the fucken drive thru, you white cunt, you white dog”. He was asked, “So which drive thru was that mate?” and replied, “Mate, that was the bloody, Seabreeze drive thru and the drive thru at the crazy man”. The following exchange ensued:

105. [123]

     The accused was asked, “Did you get the six pack of beer in the end mate, and you brought that home?” He replied:

106. [124]

     When asked if his mother was home, he said she was at work at the Chinese restaurant, “she works ten hours at Big 4 and then like six hours at the Chinese every night”. At 8pm, the accused said to Sgt Goddard, “mum’s going to knock off work soon”.

107. [125]

     I note that Ms Williamson gave evidence that she finished work at 8:45pm that night. When she arrived at the intersection of Simpson Street and Albert Harrower Crescent, she saw police tape and spoke with police, who informed her that the accused was in custody.

108. [126]

     Sgt Goddard asked the accused, “Just walk me through, what happened out the front here mate? He’s obviously come out of the car and called you out”. The accused replied:

109. [127]

     The accused indicated his right hand as the one with which he hit Mr Tozer in the head, his right elbow as the one he used to hit Mr Tozer in the mouth and his right foot as the one he used on Mr Tozer’s head. And later:

110. [128]

     Sgt Goddard searched the accused, who was cooperative. The accused said, “And in this pocket I think there is a pen, because I try to write down everything that happens”. The accused handed over the pen, which was in the left pocket of his shorts, and some pearls from the same pocket, saying, “it’s just the pearls off me Nan’s necklace, old mate ripped it off before so it doesn’t matter”. Sgt Goddard placed the broken necklace and other items in exhibit bags.

111. [129]

     The accused referred to the presence of eyewitnesses during the incident. He said to Sgt Goddard, “if I had witnesses from across the road and stuff whose seen everything that happened, would I be able to bring them in with me to court?” Sgt Goddard asked him, “Do you know which neighbours saw it all?” The accused replied, “Yeah, well they seen him chase me into the driveway, do all that, me jump out try to be nice and then him pull a weapon and then things happen”. When asked again which neighbours, he appeared to refer to various residences, saying:

112. [130]

     The accused added:

113. [131]

     Sgt Goddard asked the accused if he had any injuries. He replied, “Mate, look, can’t even walk properly, look at my toe. Look at my hands mate. He bit me. He told me he was going to stab me”. Sgt Goddard asked him, “Where’d he bite you?” The accused replied, “Look. He bit me all over the hands … Mate that’s the, he bit me all over the hands, look – teeth. Teeth. Teeth. Teeth. Teeth”.

114. [132]

     The accused again referred to the threat he claimed to have heard, saying:

115. [133]

     Det Sgt Barber and Detective Senior Constable Priest (Det SC Priest) approached the residence at Number 10 while the accused was in the police van. Det SC Priest’s BWV, which was an exhibit, was active. As they approached a small patio alongside the front door at 8:32pm, a screwdriver could be seen on the ground alongside a front door mat, which was later seized (the screwdriver).

116. [134]

     The officers gained entry to the residence via the back door. The Rottweiler, which was in the back yard, was friendly towards them. They briefly searched the residence and from 8:43pm, they questioned the accused while he was in the back of the police vehicle. They asked him when his mother normally got home from work. He said, “I don’t know, anywhere from 7:30 till 11:30”.

117. [135]

     The accused told them that the other man had tried to stab him (“Old mate tried to stab me”). He said, “my neighbours … they heard him chase me. They heard the whole thing”. The following exchange occurred between Det Sgt Barber and the accused:

118. [136]

     A few minutes later, he said:

119. [137]

     When asked “Where was the first place you saw him?”, the accused initially replied, “At the Chinese”, explaining later that he meant a Chinese restaurant in South West Rocks where his mother worked. He was asked, “So when you say the Chinese, you say you were getting your drinks from there?” He replied, “No. My mum works at the Chinese. Just up from the Chinese … Yeah. They’ve got two bottle shops in South West Rocks”.

120. [138]

     The accused was again asked where he first saw the other man, and said:

121. [139]

     Later, the accused was asked which of the two bottle shops in South West Rocks he meant. He replied:

122. [140]

     The accused was asked:

123. [141]

     The accused said he bought a six-pack of Carlton Dry, which was in the front of his car. He was asked where he was before he went to the bottle shop. He replied that he had visited his friend, Khan Mills, at Kempsey. The questioning continued:

124. [142]

     Later, Det Sgt Barber asked the accused:

125. [143]

     I note that “Peter Needs” was a chemist that was on the corner of Memorial Avenue and Paragon Avenue, not far from the Chinese restaurant where Ms Williamson worked. The accused said the route of the chase as he tried to lose Mr Tozer was as follows:

126. [144]

     As to what occurred when they arrived at the accused’s residence, he said the other man:

127. [145]

     Later, he added:

128. [146]

     The accused said that when he arrived back home he was “scared as shit”. He continued:

129. [147]

     I note that the accused appeared to be imitating his attacker, when he said, “You white dog. I’m goin’ to get you”. The accused was asked where on the body he kicked the other man. He replied:

130. [148]

     The accused later indicated that he kicked the other man with his right leg. When asked what happened when the man fell, he said:

131. [149]

     The following exchange occurred between the accused and Det Sgt Barber:

132. [150]

     Towards the end of the questioning, the accused gave a different account of when the neighbours were present. He said:

133. [151]

     The accused was transported to Kempsey Police Station. At 9:34pm, he was transferred from the caged vehicle to a cell in the police station by Sgt Ward, who activated her BWV. He was told that the other man was “with the ambulance”. He replied, “He deserves it after trying to stab me”. Constable Charles Adnum assisted Sgt Ward in transferring the accused to the cell. A statement by Constable Adnum was read, in which he stated:

134. [152]

     The formal police interview occurred at Kempsey Police Station, commencing at 5:11am on 29 July 2021. It was conducted by Det Sgt Barber and Detective Senior Constable Robert Dingle (Det SC Dingle). The accused was asked when he first came into contact with the other man, to which he replied:

135. [153]

     The accused was asked what it was that Mr Tozer was yelling at him:

136. [154]

     The accused said, “He followed me all the way to my house, to the point I was scared shitless”. The accused said that when he arrived home, “I jumped out and I ran … To my front door to go and get my dog, get my, like, you know, and my neighbours were across the road”. He later explained that after he got his dog, a Rottweiler:

137. [155]

     The accused said that the other man had pulled up across his driveway, “I parked in my drive-way and he parked me in, so I couldn’t drive anywhere”. As to what then happened, the accused said:

138. [156]

     As to where he and Mr Tozer were when he punched and kicked Mr Tozer, the accused said, “Next to his car that was parked in my driveway”. As to his use of force on Mr Tozer, he said:

139. [157]

     As to the extent of the injuries he thought he had inflicted on Mr Tozer, he said:

140. [158]

     The accused said that he felt fear as a result of being followed by Mr Tozer and his belief that Mr Tozer had a weapon. He also referred to his actions as defending his property rights against a trespasser:

141. [159]

     He said that there were eyewitnesses, but would not identify them:

142. [160]

     Towards the end of the interview, the accused gave a different version of his and Mr Tozer’s movements when they first arrived at the property:

143. [161]

     The accused appeared to indicate a distance with his hands of about a metre, between the door and porch. It is difficult to understand what the accused was attempting to communicate by the gesture, since it was unresponsive to the question, and the front door was on the porch.

144. [162]

     As to what Mr Tozer was holding, the accused said:

145. [163]

     Det Sgt Barber asked the accused:

146. [164]

     The accused was reminded of his earlier answer which was that, at the time he first had contact with the other man, he was driving to get some beers. The following exchange occurred:

147. [165]

     Police spoke to staff at the Seabreeze Hotel in South West Rocks, who knew the accused, on the same night as the incident. They said that the accused had not been to the hotel that evening. CCTV imagery from the bottle shop at the rear of the hotel did not reveal the presence of the accused at the hotel that evening.

148. [166]

     The accused told Sgt Goddard that he had epilepsy:

149. [167]

     When Det Sgt Barber and Det SC Priest spoke to the accused at Number 10, he told them that he suffered from “stress induced epilepsy”, but repeatedly refused to tell them where his medication was. Det Sgt Barber said that at about 11:50pm, Ms Williamson advised police that the accused had been diagnosed with epilepsy and needed medication. She explained where it was at Number 10. Det Sgt Barber located the medication and arranged for it to be taken to Kempsey police station.

150. [168]

     As noted, the accused was described by various occupants of 16 Simpson Street that night as having blood on his hands, chest, stomach, legs and feet.

151. [169]

     In images captured of the accused in the police van at Number 10, by which time the accused had put on a long-sleeved shirt, streaks of what appeared to be blood were observed on his shins, more so on his right shin. Those marks were no longer visible by the time the accused was escorted from the police van at Kempsey police station at about 9:34pm. Photographs taken at Kempsey police station of the rear of the accused’s legs reveal streaks of what appears to be blood on both of his calves, in approximately equal areas.

152. [170]

     The accused had a laceration to the knuckle area of the middle finger of his right hand and in the knuckle area of the middle and index fingers of his left hand. The knuckle area of both hands was swollen. The accused received medical attention at Kempsey hospital the following day for a broken toe in his right foot, and his right hand and wrist, which were found to be infected.

153. [171]

     Photographs of the accused’s legs and feet taken that night do not reveal any breaks to the skin, nor is there any evidence from other sources of the accused having breaks to his skin, other than on his knuckles.

154. [172]

     A forensic procedure was conducted on the accused between 3am and 3:50am on 29 July 2021, including the collection of swabs from the accused’s hands and legs for DNA analysis. The DNA analysis revealed that Mr Tozer could not be excluded as a contributor to swabs taken from the thumb and little finger of the accused’s left hand, the index, ring and little fingers of his right hand, and his left leg. Mr Tozer was a major contributor to swabs taken from the accused’s right hand thumb.

155. [173]

     The accused’s shoes and socks were seized while he was in the police van at Number 10. Photographs subsequently taken of his shoes reveal dark discolouration over all their surfaces. Photographs of his socks, which are white, show small amounts of discolouration, on one sock (sock 1), which was determined to be caused by blood, and extensive discolouration on the other around the toe area (sock 2), also caused by blood. There was no evidence as to which foot each sock was removed from. A DNA tape lift from the extensive area of blood on sock 2 disclosed it to have the same profile as Mr Tozer.

156. [174]

     On forensic examination, the accused’s shoes were found to have a significant amount of bloodstaining. On the right shoe, the areas where the bloodstaining was found included the front, rear, top, medial side, lateral side and the sole. A blood swab from the top of the right shoe disclosed that the DNA recovered had the same profile as Mr Tozer. Five blood swabs were taken from the sole of the right shoe, being the heel, toe, medial (arch) area, lateral (arch) area, and the ball or centre area of the sole. All were found to have the same profile as Mr Tozer. The accused could not be excluded as a minor contributor to two of the swabs.

157. [175]

     The area of bloodstaining on the accused’s left shoe included the top, medial side, lateral side and sole. A blood swab from the medial side of the left shoe disclosed that the DNA recovered had the same profile as Mr Tozer. Five areas of the sole of the left shoe, approximating the same areas as those tested on the sole of the right shoe, were subjected to blood swabs. Mr Tozer was found to be a major contributor to two of the areas and could not be excluded as a contributor to the remaining three, which were from the heel and toe, and the lateral (arch) area.

158. [176]

     Following his arrest, the accused was photographed, then his clothing was seized and separately photographed. Blood was located on the front and rear of the accused’s shorts, particularly on the right front side. A trace DNA tape lift from the rear inner waistband, that was selected in order to maximise the prospect of obtaining the DNA of the person who normally wore the shorts, obtained a mixture of at least two individuals. Mr Tozer and the accused could not be excluded. A blood swatch from the area of the front right side of the shorts had the same profile as the accused.

159. [177]

     The shirt that the accused was putting on at the time of his arrest was examined. Bloodstains were located on its front and rear. A trace DNA lift from the rear inner neck area was a mixture of at least three individuals. The major contributor had the same profile as the accused and Mr Tozer could not be excluded as the minor contributor. A blood swatch from the shirt had the same profile as the accused.

160. [178]

     There was no medical expert evidence as to Mr Tozer’s level of fitness, although his wife gave evidence that he had two shoulder replacements for one of his shoulders and “a bad hip and bad knees” and was “just finishing radiation therapy for prostate cancer”.

161. [179]

     Mr Tozer’s right shoe, which (as noted) was located in the gutter near the grate, had a spot of blood on the medial side, which had the same DNA profile as that of the accused.

162. [180]

     Mr Tozer was wearing a black polo shirt (the polo shirt). Bloodstains were located over the rear upper end of the shirt and most of the front. A saturation blood stain was on the underside of the left collar. A blood swatch from the front right side of the shirt had the same DNA profile as the accused. A trace DNA tape lift from the inner surface of the shirt that was void of blood had a mixture of DNA from at least two individuals, the major contributor being Mr Tozer. The accused could not be excluded as the minor contributor. A blood swatch from the saturation blood stain on the left collar had the same profile as Mr Tozer.

163. [181]

     Mr Tozer was also wearing a T-shirt that had blood stains on its front and rear (the T-shirt). A blood swatch had DNA from at least two individuals, the major contributor being Mr Tozer. He was also wearing a zippered jacket that had bloodstains on its front, rear, collar and arms. Blood swatches from the inner collar area and the outer surface of the rear of the jacket recovered the same DNA profile as that for Mr Tozer. His tracksuit pants did not test positive for the presence of human blood.

164. [182]

     Acting Sergeant Aleisha Vercoe (Acting Sgt Vercoe), a crime scene officer, conducted a number of experiments in an attempt to enhance and compare marks on the polo shirt with the pattern on the soles of the accused’s right shoe. The experiments involved the capturing of infrared images of the polo shirt that better revealed the marks upon it, in particular, blood deposits. Another crime scene officer, Louise Craft, had access to the shoes and the polo shirt images that had been prepared by Acting Sgt Vercoe, and conducted a comparison of those items, utilising silicon spray on the sole of the right shoe to create an impression of its pattern and Photoshop software to enhance contrast in the images.

165. [183]

     Ms Craft’s evidence was that she discerned three types of patterns in different parts of the sole of the right shoe, which she described as tracks, pentagon shapes and a V-shaped impression. She was able to discern all three patterns on an enhanced part of the polo shirt, left on it by a transfer of blood from a shoe “of a similar size and tread pattern” as the accused’s right shoe. This was demonstrated in a chart comparing the sole of the accused’s shoe with the impressions on the polo shirt, which were tendered into evidence.

166. [184]

     Ms Craft undertook a similar experiment with the T-shirt and the right shoe, and produced a comparison chart on which, in her opinion, the tracks pattern could be discerned on enhanced (infrared) images of the T-shirt. She concluded:

167. [185]

     The images on the T-shirt between the track pattern and the other two patterns are further apart than on the shoe. When asked if there was any observation she would make about that, Ms Craft replied:

168. [186]

     An examination of the XR8 disclosed that its right side mirror was severely damaged. The casing was hanging down at 90 degrees to the ground. The mirror and the plastic panel that held it in place, and the exterior covering for the casing, were missing. On 30 July 2021, police recovered fractured pieces of white plastic from the street parking strip between the driveway of the United service station and Gregory Street, that is, where the XR8 was parked on the evening of 28 July 2021. A police crime scene officer determined that the pieces of plastic fitted the back of the casing of the damaged XR8 side mirror.

169. [187]

     Det SC Priest’s BWV was operating as he walked up the driveway of Number 10 at 8:32pm on 28 July 2021, passing the Getz on its left side. The left side mirror of the Getz is seen to be folded back against the body of the car. Later that evening, the Getz was moved to a secure police holding yard and forensically examined on 30 July 2021. A vehicle side mirror holding panel (the mirror panel), with a piece of the mirror still in place, was lying on the middle of the back seat. Some small fragments of mirror were located in the rear of the Getz, including in the space between the door and the seat on the rear passenger side. A police crime scene officer found that the mirror panel fitted inside the casing of the right side mirror of the XR8, including an alignment of the broken edges of the plastic joint that held it in place. That is, the pieces of plastic located on Gregory Street outside the United service station and the mirror panel located in the rear seat of the Getz were all from the right side mirror of the XR8.

170. [188]

     The height from the ground of the XR8 damaged side mirror and the left side mirror of the Getz were measured and found to be 90cm and 93cm respectively.

171. [189]

     A DNA profile from a blood stain on the bottom edge of the mirror panel had the same profile as that of the accused.

172. [190]

     In the course of evidence about the Getz left side mirror, there was considerable focus on a white mark that can be seen on photos taken of that mirror in its folded-back position. In those photographs, white paint-like smears can be seen on that part of the mirror casing that, in the extended position, would be flat against the mirror fixing/anchoring mechanism. Connie Adalba, a forensic chemist employed by the Forensic and Analytical Science Service of NSW Health (FASS), gave evidence that the white paint-like smears on the Getz side mirror did not share the same origin as the white paint from the pieces of plastic located on Gregory Street outside the United service station, which belonged to the XR8 mirror casing.

173. [191]

     I am satisfied that the white paint-like smears on the Getz side mirror could not have been made during, or as a consequence of, an impact as alleged in the Crown case. It is obvious that if the side mirrors did make contact while the Getz side-swiped the XR8 from behind while driving up Gregory Street, the Getz mirror casing, which is black, would have been impacted by the rim of the XR8 side mirror panel, which is also black.

174. [192]

     As noted, the neighbours attending the scene looked for a knife while they waited for police to arrive at Number 10. That evening, police searched for a knife in the vicinity of where Mr Tozer was lying and did not locate one.

175. [193]

     Police also conducted a line search of Number 10 the following day (29 July 2021) for a knife or any other item that may have been used as a weapon. On that day, police also searched the drain beneath the grate, the drain pit and pipes leading to and from that pit, and another pit across the road that was connected by pipes, utilising torches and mirrors. Police also searched the area from the western side of Albert Harrower Crescent to the intersection of Greenway Close. Police did not locate a knife or other weapon in any of those locations.

176. [194]

     Acting Sgt Vercoe attended Number 10 on the evening of 28 July 2021. She photographed a bloodstain on the bonnet of the Jeep, a bloodstain on the garage door and drip stains on the steps leading up to the patio. They were subsequently found to have the same DNA as the accused. Bloodstains on the exterior front door handle and door jamb were found to have DNA of at least two individuals, of which the accused was the major contributor.

177. [195]

     Acting Sgt Vercoe photographed the screwdriver in situ and seized it. She subsequently examined it, which she described as a black and yellow-handled Phillips-head screwdriver. The screwdriver was measured to be 200mm long with a 100mm handle. There is a black tip which is 15mm long. The screwdriver itself was also an exhibit. It is apparent from photographs of the screwdriver taken at the time of Acting Sgt Vercoe’s forensic examination that it was not in a new condition, having dark smudge marks on the handle and multiple rust spots on the shaft.

178. [196]

     Acting Sgt Vercoe located two areas of fingerprint ridge detail on the handle, which were not sufficiently detailed to enable fingerprint comparisons to be made. A blood swab of two small bloodstains on the end of the handle yielded DNA from at least two individuals, the major contributor being Mr Tozer. The accused could not be excluded as the minor contributor. A trace DNA swab from the tip of the screwdriver was unsuitable for comparison. A trace DNA swab from the handle, taken by Acting Sgt Vercoe utilising what she described as her “best attempts at avoiding the blood staining”, yielded a mixture that originated from at least three individuals, the major contributor being Mr Tozer. The accused could not be excluded as the minor contributor. Acting Sgt Vercoe explained that her reason for attempting to avoid blood stains with these trace DNA swabs was:

179. [197]

     In cross-examination, Acting Sgt Vercoe was asked:

180. [198]

     Virginia Friedman, the analyst employed by FASS who carried out the DNA analyses of the samples submitted by police as part of their investigation, was called by the Crown to give evidence as to the DNA tape lift from the handle of the screwdriver. She confirmed her initial result, as noted above. She also confirmed that in her report she had said that statistics could be provided, if requested.

181. [199]

     In a supplementary report dated 15 February 2024, Ms Friedman provided the statistics, which referred to the mixture being from at least four individuals. When asked what caused the change from three individuals, she said:

182. [200]

     Ms Friedman’s supplementary report also differed from her initial report as to whether there was a major contributor. She said:

183. [201]

     Ms Friedman was asked:

184. [202]

     Ms Friedman was asked whether, given that some of the swabs taken from the accused’s fingers detected DNA to which Mr Tozer had contributed, Mr Tozer’s DNA could have been transferred to the screwdriver handle by the accused subsequently holding the screwdriver. She replied, “Yes, that’s one explanation for Mr Tozer’s DNA being recovered on an item”. She also agreed that another possibility was that Mr Tozer could have transferred the accused’s DNA onto the screwdriver without the accused having ever touched it.

185. [203]

     The Crown tendered a BWV from Senior Constable James Taylor (SC Taylor), taken on 4 November 2020 on the footpath of Number 10, in which the accused can be seen retrieving a yellow-handled screwdriver from the boot of the Getz, which is parked on the road (the screwdriver BWV). A chart was tendered, comparing images of the screwdriver taken from the screwdriver BWV with images of the screwdriver seized from the patio. I note that the screwdrivers do not have any points of dissimilarity and a noticeable point of similarity, which are marks on the stem of the screwdriver in the screwdriver BWV that are consistent with the rust marks on the stem of the screwdriver from the patio.

186. [204]

     Mr Tozer’s wife was asked in evidence whether she knew if Mr Tozer carried tools in the XR8. She replied, “He didn’t carry any tools. I don’t think”. I note that an examination of the contents of the XR8 by Acting Sgt Vercoe, at Number 10 on 28 July 2021, did not reveal any tools in the glove box or elsewhere in the interior of the cabin, but there was a toolbox located in the boot. The contents of the toolbox were not in evidence.

187. [205]

     On 27 September 2022, Det Sgt Barber showed two close-up colour photographs of the screwdriver to Mr Tozer’s wife. In evidence, Mrs Tozer said, “I’ve never seen those screwdrivers before”. Photographs taken by police of Mr Tozer’s toolbox in his garage included images of many screwdrivers, all of which appeared to be in clean and well-kept condition. Det Sgt Barber gave evidence that she searched Mr Tozer’s toolbox, the XR8 and the Getz and did not find any screwdrivers similar to the one she found on the patio at Number 10.

188. [206]

     After the storm, Acting Sgt Vercoe located a shirt on the nature strip outside Number 10, and photographed it in situ. It appears scrunched up, lying on the grass. The shirt was in an area that was not protected from the storm, so that rainwater may have caused blood stains on the shirt to spread. Acting Sgt Vercoe recorded her subsequent examination of the shirt as follows:

189. [207]

     A trace DNA tape lift from the inner left shoulder/back area of the shirt, which was selected because it did not have apparent blood stains, was found to have DNA from at least three individuals. The major contributor had the same profile as Mr Tozer and the accused could not be excluded as the minor contributor. A blood swatch from the shirt had the same DNA profile as Mr Tozer.

190. [208]

     The evidence of the occupants of 16 Simpson Street was to the effect that when the accused appeared at their side gate shortly before 7pm, he was stripped to the waist. It is apparent from the BWV of SC Black that when he arrested the accused at 7:28pm, he was putting on a long-sleeved shirt. An inference might be drawn that, since Mr Tozer did not appear to be missing any upper clothing, the accused had been wearing the scrunched-up shirt that was located by Acting Sgt Vercoe, during the confrontation, and took it off and discarded it on the lawn before he went to 16 Simpson Street.

191. [209]

     However, the CCTV that captured images of the accused at South West Rocks Cellars between 6:29 and 6:34pm shows him wearing a collared, button-up shirt that appears plain in colour, possibly green or khaki, with short sleeves. I would describe the scrunched-up shirt, gauged from photographs taken when it was forensically examined, as a patterned shirt with predominantly red colours, and short sleeves. While this suggests that the shirts are not one and the same, I note photographs taken of a shirt on the back of a chair in the residence of Number 10 that Det Sgt Barber described as having the same appearance. In the photograph, which was taken some metres from the shirt, the colours blur and appear to be a uniform dull colour. That being so, I draw an inference that the scrunched up shirt is the one that the accused is seen to wear outside South West Rocks Cellars ten minutes before the confrontation and, likely, during, at least part of, the physical confrontation.

192. [210]

     The pen that was seized from the accused’s shorts (the pen) had a cover that slotted over the nib end. A single dried red stain, in the form of a dot, was observed on the shaft of the pen, at a position that was exposed when the cover was fixed. The dot fell off the pen when Acting Sgt Vercoe handled it. A swab of the dot was found to have the same DNA profile as that of Mr Tozer. A trace DNA swab from elsewhere on the lid was found to have DNA from at least two individuals, and that Mr Tozer could not be excluded as being one of them. Areas of fingerprint ridge detail were located on the pen lid and shaft. The former was not suitable for comparison and the latter yielded an inconclusive finding of the middle finger of the accused.

193. [211]

     Mr Tozer’s wife gave evidence that she did not know him to carry a pen, other than perhaps in his backpack.

194. [212]

     The XR8 had a V8 engine, which was very loud. The car had passed a vehicle inspection for registration renewal the day before, on 27 July 2021.

195. [213]

     Acting Sgt Vercoe commenced her forensic examination of the XR8 on the evening of 28 July 2021 where it was parked at Number 10, and continued it on subsequent dates after it was moved to a secure police location. A mobile phone was seen in the area between the two front seats and a set of keys, including a Ford car key, were on the driver’s seat. Subsequent testing of the Ford car key for DNA disclosed a mixture from at least two individuals, the major contributor being Mr Tozer.

196. [214]

     Three small bloodstains were located on the right side of the rear of the XR8; one towards the top of the boot lid and two on the corner of the bumper bar. One of those stains on the bumper bar was tested and found to have the same DNA profile as the accused. Blood swabs were taken from blood stains that were located in the area of the driver’s door handle and the roof immediately above the driver’s door. The driver’s door handle swab had the same DNA profile as the accused. The roof swab disclosed DNA that originated from two individuals. The accused and Mr Tozer could not be excluded as contributors. A fingerprint analysis of a latent palm print on the external side of the driver’s door glass identified it as a left palm print of the accused.

197. [215]

     A drip stain, that was located on the car floor alongside the right side rail of the driver’s seat, was also found to have the same DNA profile as the accused. Bloodstains were located near the ignition barrel, indicator arm, fuel release button and boot release button, which were found to have the DNA of at least two individuals, the major contributor being the accused. Mr Tozer could not be excluded as the minor contributor.

198. [216]

     A photograph taken by Acting Sgt Vercoe of the contents of the boot showed a black backpack and another bag, which are consistent in appearance with the bags seen to be carried by Mr Tozer as he walked away from the entrance to the cashier area of the United Service Station that night.

199. [217]

     Mr Tozer’s wife gave evidence that to her knowledge he did not have a knife in the car.

200. [218]

     A bloodstain was located near the rear driver side exterior door handle of the Getz, which was found to have the same DNA profile as that of the accused.

201. [219]

     Numerous bloodstains were located inside the Getz. Blood was located in the area just above the lower door pockets on the interior of both the front passenger and driver’s doors, around the ignition area, towards the front of the driver’s seat, on the inside of the rear driver’s side door near and on the window winder handle, on the rear passenger side door trim (which is exposed only when the door is open), on the interior front passenger door handle and upper area, in the front right section of the front passenger side seat cushion, on the cardboard packaging for Woodstock bourbon and cola and in the exterior boot, near the handle. A blood smear was also found inside the glove box of the Getz. Blood swabs were taken from the blood on the ignition area, the interior of the rear driver’s side door and the interior front passenger side door near the lower door pocket. All three samples yielded a DNA profile that was the same as that for the accused.

202. [220]

     A photograph of the vertical metal strip immediately behind the grate and the grate itself, taken on the evening of 28 July 2021, has multiple drops of blood in the form of a spray, which were described by Acting Sgt Vercoe as having “the characteristics of spatter stains”. Blood swabs from the vertical strip had the same DNA profile as Mr Tozer and a blood swab from the grate was a mixture of DNA from two individuals, the major contributor being Mr Tozer. The accused could not be excluded as the minor contributor. A few centimetres south of the grate, in the gutter, was a pool of blood that, when tested, had the same DNA profile as Mr Tozer.

203. [221]

     A cloth that was seized from within the residence at Number 10 was found by Acting Sgt Vercoe to have several bloodstains. A blood swatch had DNA from at least two individuals, the major contributor having the same DNA profile as the accused. Mr Tozer could not be excluded as a minor contributor.

204. [222]

     Bloodstains located on a timber gate at 16 Simpson Street, and on the ground at the street-side foot of the gate, were found to have the same DNA profile as the accused.

205. [223]

     A broken necklace, described as a “pearl necklace”, that was seized by Sgt Goddard from the accused’s shorts left pocket was examined. An analysis of a trace DNA swab from the clip and some large beads was unsuccessful.

206. [224]

     A pair of black framed glasses that belonged to Mr Tozer was located on the ground in the vicinity of the grate. It had only one lens, with another lens and a glasses strap located nearby. A DNA trace swab from the bridge of the glasses had the same DNA as Mr Tozer.

207. [225]

     A right shoe that was in the gutter about a metre south of the grate was seized. It matched a shoe on Mr Tozer’s left foot.

208. [226]

     On 30 July 2021, in the course of the execution of a crime scene warrant on Number 10, blood was located on a garden tap in the south west corner of the front yard. A swab of blood had the same profile as the accused.

209. [227]

     Certain edited audio recordings of gaol calls made by the accused to friends and members of his family were ruled admissible in the Crown case over the objections of counsel for the defence: Fuller (No 3). Some other calls, or parts of calls, were admitted by the Crown at the request of the defence. In total, 19 of the 25 proposed gaol calls were admitted into evidence: Fuller (No 3). In this judgment, for ease of reference, and to avoid confusion, I will refer to each call by the number assigned to the call in the exhibit tendered into the trial, immediately followed by, in brackets, the original number assigned to each call referred to in Fuller (No 3).

210. [228]

     In seven of the calls (calls 1 (1), 4 (6), 8 (13), 9 (14), 10 (16), 13 (19) and 14 (20)), the accused refers to the nature of the weapon that he says he believed Mr Tozer was holding, in particular, that it was, or may have been, the screwdriver (the screwdriver calls).

211. [229]

     In gaol call 1 (1), on 20 August 2021, the accused is heard to state to his father:

212. [230]

     In gaol call 4 (6), on 4 September 2021, the accused is heard to state to one of his brothers:

213. [231]

     In gaol call 8 (13), on 20 October 2022, the accused said to his father:

214. [232]

     Similarly in gaol call 14 (20), which was made on 2 August 2023 to his mother, the accused said that he was defending himself and that the other man had a knife which had the other man’s DNA “all over the knife, but it was a screwdriver”.

215. [233]

     In gaol calls 9 (14) and 13 (19), the accused refers to the screwdriver having Mr Tozer’s DNA on it and the prosecution being unable to prove that it was not the weapon used against him.

216. [234]

     In gaol call 10 (16), the accused said to a friend:

217. [235]

     In gaol call 2 (2), the accused referred to one of Mr Tozer’s teeth lodging in the accused’s hand as a result of the accused punching Mr Tozer to his mouth. Whether a tooth in fact lodged in the accused’s hand or not, this assertion is relevant to where on Mr Tozer’s body the accused punched him, and the accused’s belief as to the degree of force that he used in the punch or punches to Mr Tozer’s ’s mouth. A part of call 4 (6) that similarly referred to the accused having Mr Tozer’s tooth in his hand was ruled admissible, but the Crown has not tendered that part of that call.

218. [236]

     In gaol call 11 (17), the accused referred to the circumstances of a kick he delivered to Mr Tozer. He said:

219. [237]

     In gaol call 6 (9), which was with his father on 30 March 2022, by which time he was aware there was an audio recording of the confrontation, the accused stated that his memory of what occurred was imperfect, but that Mr Tozer had said that he was going to kill him:

220. [238]

     In gaol call 14 (20), which was on 2 August 2023 with his mother, by which time the accused had heard the audio of the confrontation, he conceded that he may have kicked the deceased while the deceased was on the ground, including by kicking him on his chest, but he did not recall. Because “I was in a state of … fear, and shock, and I was scared for my life”. And later:

221. [239]

     In call 15 (21), which was on 2 August 2023 with his mother, a matter of minutes after the previous call, the accused gave a relatively detailed account of what occurred. He said:

222. [240]

     In call 16 (22), which was with his mother on 6 August 2023, the accused said:

223. [241]

     In call 17 (23), which was with his mother on 8 August 2023, the accused said:

224. [242]

     In call 18 (24), on 10 August 2023, the accused said to his mother that Mr Tozer:

225. [243]

     In call 19 (25), on 11 August 2023, the accused said to his mother, “he chased me, yeah fuckin oath he did, he cornered me, like he come at me … with a weapon”. Later in the call, he said:

226. [244]

     In call 12 (18), which was on 16 July 2023 with his father, the accused said:

227. [245]

     As noted, in call 4 (6), in a conversation with one of his brothers, the accused referred to their father being stabbed as something he had not wanted to happen to him, and that he had tried to drive away, but he was followed by Mr Tozer.

228. [246]

     In call 7 (10), which was on 15 May 2022 with his father, the accused said he had seen a transcript of the CCTV audio. He told his father that he could be heard:

229. [247]

     As noted above at [4], in Fuller (No 2) I made rulings as to the admissibility of tendency evidence of the accused’s alleged tendencies proposed to be led by the Crown in the trial. Certain evidence was ruled admissible in support of the following three alleged tendencies:

230. [248]

     At the time that Fuller (No 2) was handed down, on 27 September 2024, the defence was still relying upon substantial impairment. That was abandoned on 2 October 2024. The evidence as to the second of these alleged tendencies was not tendered by the Crown in the trial proper, presumably because it was (rightly) regarded as exclusively relevant to the issue of substantial impairment. Evidence as to the first and third alleged tendencies is now reviewed.

231. [249]

     A former partner of the accused, Courtney Bilsborough, gave evidence of two incidents that she witnessed, where the accused became angry with other drivers. She said that the first incident in time occurred when she was pregnant with their child, who was born in July 2018, when they drove to a supermarket in Port Macquarie. The accused was driving, and Ms Bilsborough was the only passenger. She said that they were on the rooftop car park, waiting for a car to exit a particular parking spot, when another elderly driver took the spot before the accused. She said that when the accused got angry the veins in his forehead would “pop out”, which happened on this occasion. Ms Bilsborough reported that the accused got out of their car and yelled at the other driver, saying:

232. [250]

     She said the other driver was “old old” and had a female passenger with him. She recalled that the other driver was going to get out of his car, that the accused was yelling, and that the other driver subsequently changed his mind, shut his door and drove off. She said, “The man drove off. Connor was obviously still upset, just calling him names and stuff, but that’s it”.

233. [251]

     Ms Bilsborough said that the second incident also occurred while she was pregnant. It was at a supermarket in South West Rocks. The accused was driving the Jeep, which was the accused’s mother’s car, and she was in the passenger seat. She said:

234. [252]

     She said that, from his driver’s seat, the accused “got angry and yelled at the other driver. He just called him names and stuff and threatened to, I don’t know, do something. I can’t remember. Sorry”. She said the other driver drove off, and so did they.

235. [253]

     The Crown tendered the BWV of a conversation between the accused and SC Taylor that occurred at Kempsey Police Station on 26 July 2018. The accused had attended the police station to assist police with their inquiries into an allegation that he had damaged a car while it was in a car park at Kempsey Hospital that belonged to Ms Bilsborough’s mother (the hospital incident). The accused was forthright in response to SC Taylor’s questioning, readily admitting the damage. He explained that the circumstances were that he was at the hospital with his partner, Ms Bilsborough, who was in labour. Ms Bilsborough’s mother (Leanne) and her partner (Lee) were invited to be there as well. The accused said:

236. [254]

     The accused said that when their child was born, Leanne and Lee held the baby before he did, which upset him. He said:

237. [255]

     The accused offered that, as well as keying Leanne’s car, he wrote “slut” on it and, he thought, “die”. He said to SC Taylor, “But what extents would you go to, to protect your family and be there for your family? That’s the moral and questionable argument”. SC Taylor asked the accused why he did it. He replied that he felt threatened, hurt, and that his “whole world had got taken” from him, adding:

238. [256]

     On the morning of 4 November 2020, Constable Norman (Const Norman) and SC Taylor attended Number 10 to interview the accused about an incident that occurred a month before at a tavern in Crescent Head (the Crescent Head incident). The BWV’s of both officers were activated at a point that they are standing on the footpath area outside Number 10, questioning the accused, who is wearing shorts, shoes and a cap, with a small dark shoulder bag over a shoulder, and holding a football. During the course of the questioning, he sat on the football, rolled a cigarette and smoked it. Both BWVs were exhibits.

239. [257]

     The questioning was primarily conducted by Const Norman. Occasionally, SC Taylor would also ask a question, in a tone that indicated he was sceptical of the truth of the accused’s account. As the questioning continued, SC Taylor asked questions that challenged the accused’s claim that he did not recall certain matters, which could, in my opinion, be characterised as a gentle cross-examination. After a few such questions, the accused said he did not want to speak to SC Taylor, explaining:

240. [258]

     Later in the interview, by which time the accused and SC Taylor were discussing another issue unrelated to the Crescent Head incident, the accused said:

3. The case for the defence

1. [259]

   Although the defence did not call any witnesses, evidence that was central to the defence case was elicited by defence counsel from the accused’s parents, who were called by Crown. This evidence concerned the accused’s upbringing, in particular, his exposure from infancy to his late adolescence to domestic and social violence and neglect. This evidence was not challenged by the Crown

2. [260]

   I understood that evidence to be relevant as to the accused’s subjective reaction to the situation that unfolded when the XR8 pulled up at Number 10, in particular, his perception that Mr Tozer represented a serious threat to his safety, and his belief that it warranted a physical response to Mr Tozer.

3. [261]

   Ms Williamson said that the accused had been living at Number 10 for about 18 months before the incident. He had set up a gym in the garage, which included a speed ball positioned off a wall, which she described as having a punching bag on it. As to the events of 28 July 2021, Ms Williamson read from her statement: “I finished work 8.45pm, which I did as per normal, and I drove home with dinner from work”. She said that when she got to Albert Harrower Crescent and was told the accused had been arrested, she drove to the residence of a friend, Lisa Gae Phillips. The accused phoned his mother some time after midnight. She asked him what had happened:

4. [262]

   Ms Williamson was permitted, pursuant to s 32(3) of the Evidence Act, to confirm what the accused said to her on the phone, as it was recorded in her statement that was made to police on 29 July 2021:

5. [263]

   In cross-examination, Ms Williamson said that when she left the accused and went off to work at about 8am on the morning of Wednesday 28 July 2021, the accused appeared to be in a particularly good mood, apparently because he was looking forward to having access to his 3-year-old daughter on the following weekend.

6. [264]

   Ms Williamson said she had a text exchange with the accused about lunch time on 28 July 2021, in which she asked him to replace “a couple of beers” that he said he had taken from the fridge.

7. [265]

   The Crown read into evidence a statement made by Lisa Gae Phillips to police, dated 30 July 2021. Ms Phillips stated that the accused was a volunteer worker at a nursery that she and her partner owned. On 28 July 2021, he worked in the nursery for about four hours, leaving at about 1pm to visit his friend Khan in Kempsey. She was aware that the accused had been waiting on a car part, and it was his first day driving the Getz since the part arrived. She said that when he left the nursery he seemed happy.

8. [266]

   Ms Phillips said she was alongside Ms Williamson when Ms Williamson spoke with the accused at about 12:30am that night, and could clearly hear what the accused said. His account as to what occurred was as follows:

9. [267]

   Ms Phillips stated, “Connor is very protective of the people that he loves, especially his mother and his daughter”.

10. [268]

    As to the accused’s childhood and upbringing, Ms Williamson said that the accused was the oldest of her three children, all of whom were sons. The children were the product of Ms Williamson’s marriage with Michael Fuller, who is an Indigenous man. Intending no disrespect, I will refer to Michael Fuller by his first name, in order to avoid confusion with the accused. The accused is about two years older than the middle son, and seven years older that the youngest son. Ms Williamson and Michael commenced a relationship when she was aged 17 and he was 22. At that time, they were both recreational drug users and drank alcohol to excess. At one stage while they were together, Michael was an associate with the Rebels outlaw motorcycle club (the Rebels), which facilitated a supply of amphetamines. She consumed alcohol and drugs up to the twelfth week of her pregnancy with the accused, because she did not realise until then that she was pregnant.

11. [269]

    Ms Williamson described her time with Michael as “very tumultuous … we had quite a lot of domestic disputes, arguments, domestic violence”, much of which the accused witnessed. Michael would bring members of the Rebels home, which was “not a great environment for the kids”. She said Michael had physically assaulted her, and she denied having ever physically assaulted him.

12. [270]

    Ms Williamson described some specific incidents, beginning with one on 25 October 1999, at which time they were living at Clybucca. The accused was aged six. She said she and Michael had an argument in her bedroom, during which he said he would kill her. She left the room and phoned friends. A short while later, he called her back in. When she re-entered, he was holding a .222 rifle that he owned, saying, “I’m going to kill you, you'll never have your kids, I’ll kill you first”. The accused was in the house at the time. According to a police fact sheet, friends attended and he calmed down.

13. [271]

    Ms Williamson then moved to an address in South West Rocks with her two children. On 10 November 1999, Michael came to her door, and the accused let him in. She asked him to leave and he grabbed her by her arms, pushed her and left. She contacted the police, who attended and charged Michael with two counts of assault (one for the incident on 25 October 1999, and the other for the incident on 10 November 1999), two counts of possessing an unregistered forearm, and one count of not keeping a firearm safely.

14. [272]

    Michael was made the subject of an apprehended domestic violence order (an ADVO), which included a condition that he not approach Ms Williamson or the children. Neither of them always respected the conditions of the ADVO. She admitted to excessive consumption of alcohol and the abuse of drugs during her time as a single parent. On one occasion, when the accused was aged about six, she admitted that she was driving while intoxicated with her children in the car, and the car ran off the road.

15. [273]

    Ms Williamson and Michael resumed cohabitation and the accused’s youngest brother was born in March 2001. On 21 October 2001, when the accused was aged 9, she and Michael had a physical fight at home, which prompted the accused to go to a public phone box and call 000. A police Computer Operated Policing System (COPS) entry of that date, which was an exhibit, records that he told police that his parents were having a fight and “dad has threatened to hurt mum … [informant] is very young child who ran down to the phone box”. A telephone interim order was applied for.

16. [274]

    The COPS entry records this account by Ms Williamson and Michael:

17. [275]

    Another COPS entry records that on the night of 8 November 2001, Ms Williamson and Michael went to a hotel for dinner with friends. They returned home with the friends for further drinks. When the friends left, Ms Williamson left with them, taking the accused’s younger brother with her, who was then a 7-month-old child. The COPS entry states that upon her return:

18. [276]

    The following night, Ms Williamson and Michael planned to return to the hotel for drinks with friends. Michael decided to stay home to care for the three children. When Ms Williamson returned, she was intoxicated and tried to breast-feed their youngest child and Michael pushed her out of the house, down a few stairs and out the front gate, causing her to have a back injury. She contacted police and reported the events of both nights. Michael was charged with a count of assault in respect of each night.

19. [277]

    In evidence, Ms Williamson admitted that on the night of 8 November 2001, when she left with the baby, she was drunk, and on 9 November 2001, she drank alcohol throughout the afternoon and evening before she went to the hotel, and that she was drunk when she arrived back home just before midnight. She agreed it had been a “terrible idea” to breastfeed the baby in that condition.

20. [278]

    Michael was again made subject to an ADVO with a non-contact condition, the breach of which was allowed for or acquiesced to by Ms Williamson. On 7 January 2002, while Ms Williamson and Michael were at home they had an argument which escalated to a point where she believed that he was about to strike her. She lifted up her youngest child in front of her, in the belief that he would not strike a child. She said that he struck her across her right temple and to the back of her legs and buttocks. The accused was in a different room of the house at the time, but within earshot of the yelling and shouting. She left the house with the children and stayed with friends. Michael was charged with assault and breaching the ADVO.

21. [279]

    Ms Williamson said that she noticed that the two children were becoming very fearful, scared to be in the house and scared of their father. On 3 April 2002, when the accused was aged eight, Ms Williamson and Michael had an argument that deteriorated to a point that she sought refuge in the accused’s bedroom, while the accused was in the kitchen. Michael yelled an insult at her and said, “If you ring the police, the day I get out is your last day”. She fell onto the accused’s bed and Michael stood over her with a raised fist. The accused came up the hallway and said to his father, “Don’t hit mum. Stop it”. The police were contacted, and the above allegation was reflected in a tendered police facts sheet for a charge against Michael of breaching an ADVO.

22. [280]

    Ms Williamson said that in 2002, when she was a single parent of the three children, she was drinking to excess and using amphetamines. She came to the attention of the then-named NSW Department of Community Services (DOCS) in respect of the poor quality of care she was providing to her children. On one occasion that year, she left the children at home with a woman while she visited friends, but the woman departed, leaving the children unsupervised. In April of that year, the accused, then aged eight, was reported to roam in public areas with a knife in his possession “for protection”.

23. [281]

    Ms Williamson commenced a new relationship in late 2002 with Matthew Geatches. She said that by early 2003, it was apparent that Mr Geatches had an issue with alcohol, and would be violent towards her in the accused’s presence.

24. [282]

    On 21 February 2003, while Ms Williamson and Mr Geatches were at a hotel with the three children, Mr Geatches became abusive to her and another woman, and bit Ms Williamson’s ear. He was removed from the hotel by the management. When Ms Williamson left later with the children, Mr Geatches was still outside. She said the children were scared, and fortunately a passing police car stopped and Mr Geatches approached it. He was later charged with domestic-related assault. The police facts, as to the circumstances of his arrest, state:

25. [283]

    Mr Geatches received an ADVO with a no-contact condition within 12 hours of consuming alcohol, which he and Ms Williamson did not always observe. On 12 September 2003, he was at a barbeque with mutual friends at her home at her invitation where they both consumed alcohol. Ms Williamson was led through the police facts in respect of an incident on that occasion. During the evening, Mr Geatches walked over to Ms Williamson who was seated with her youngest child on her lap and slapped her twice across her face while calling her a derogatory term. He then grabbed her by the throat, saying he was going to kill her. The other two children, including the accused, witnessed the attack as well. Another guest pulled him off. Neighbours contacted police, who found Mr Geatches hiding in bushland. He was charged with assault and breaching an ADVO.

26. [284]

    Ms Williamson said that Mr Geatches was verbally abusive to her children, calling them “little bastards” to their faces.

27. [285]

    On 14 January 2004, when the accused was aged 10, Ms Williamson and Mr Geatches were cohabiting. At 11:30pm, they started fighting and, in the children’s presence, Mr Geatches threw furniture around. When police arrived, the kitchen table had been smashed, the refrigerator and a lounge chair had been tipped over, and small household items were strewn around. A COPS entry recorded that neighbours called police because “Domestic occurring … Informant can hear several children at location screaming”. The police facts record that they were also contacted by “The victim’s young son [who] contacted 000, stating the defendant was assaulting the victim”.

28. [286]

    Attending police noted that there was smoke throughout the house that appeared to be coming from the tipped-over fridge. The police facts state that while taking details from the victim “her three small children were seen in the house and appeared visibly upset … The victim was well-affected by alcohol at the time”. Police found Mr Geatches hiding in bushland. He resisted arrest and was charged with one count of assault occasioning actual bodily harm against Ms Williamson and one count of assaulting a police officer in the execution of their duty.

29. [287]

    Ms Williamson said that her relationship with Mr Geatches ended with that incident. She commenced a new relationship with Gavin Williamson, who she ended up marrying. Mr Williamson was violent towards her and did not get along with the accused. At age 14, the accused tried to hang himself in his bedroom. As she took him down, Mr Williamson said to “let him go”. The accused took a knife and ran into bushland near the house. Ms Williamson found the accused and she and Michael took him to hospital. The accused had two follow-up sessions with a counsellor.

30. [288]

    The accused attended high school at South Kempsey and decided to move in with his father who lived there. In the 12 months during which he stayed with his father, he did not visit Ms Williamson.

31. [289]

    Following the accused’s return to cohabitation with Mr and Ms Williamson, an incident occurred on 28 June 2009 involving police attendance, and Mr Williamson was charged with assaulting Ms Williamson. According to the police facts, which Ms Williamson accepted as being accurate, Mr and Ms Williamson were home drinking alcohol from 12:30pm until 8:45pm, at which time they had an argument about the accused, who was then aged 15. Mr Williamson considered that the accused was “undisciplined and disobedient towards him and his mother”. Mr Williamson assaulted Ms Williamson by grabbing her by the throat and face, and pushing her twice into a cabinet. He then pushed her out of the house and locked the door, leaving him inside with her children. She saw their bedroom light come on and heard Mr Williamson “yelling and screaming”. She smashed a glass panel in the front door in an unsuccessful attempt to regain entry and he phoned the police, who arrived at about 9:50pm. Police noted that Mr Williamson was holding a glass of alcohol as he spoke to them. He denied assaulting Ms Williamson.

32. [290]

    Mr and Ms Williamson broke up at some point after that incident. Within a month of the break-up, the accused told Ms Williamson that he did not want her to be in any more relationships. Ms Williamson said that the accused left school in Year 11 and moved to the Gold Coast for about 18 months. Upon his return, which was in about mid-2016 (when the accused would have been aged 22), he lived with Ms Williamson and her partner at the time, Ben Kilpatrick, who also drank heavily and was abusive to her. Ms Williamson said that they both were consumers of alcohol and the accused warned her, “You’re doing it again, mum”.

33. [291]

    On 25 January 2017, Mr Kilpatrick threw something at Ms Williamson. It missed her, but hit the wall, which made a noise. The accused talked to Ms Williamson about the incident the next morning, saying that “he was upset with, you know, the argument that happened the night before, that he could hear it and yeah, he was concerned”. Ms Williamson then went to work. The accused was charged with assaulting Mr Kilpatrick after she left for work. The accused moved out three or four months later.

34. [292]

    Ms Williamson said that when the accused was aged about 16, Michael was stabbed and the accused visited him in hospital shortly afterwards.

35. [293]

    The accused’s father, Michael, gave evidence in cross-examination as to the accused’s upbringing, that was broadly corroborative of the evidence of Ms Williamson. He said that in his younger years, when he was in a relationship with Ms Williamson, “there was a lot of drug and alcohol use” by both of them. He said that Ms Williamson consumed alcohol and amphetamines throughout her pregnancy with the accused. He agreed there were significant periods when they were “physically abusive” to each other, “more often than not” in front of the children. He agreed that, “more often than not”, he did not comply with ADVOs that were made against him, which was “partially” his or her decision.

36. [294]

    Michael said that during some of his fights with Ms Williamson, the accused became involved, because he was “very, very protective of his mother … He would physically get in between us. He would yell and scream at me to get out and the both of us to stop”.

37. [295]

    Michael said that after Ms Williamson lost control of her car and drove through a fence, he fixed the fence and repaired the car. When she was in a relationship with Mr Geatches, when the accused was aged about nine, the two younger boys came to live with him for a while. The accused declined, explaining to him that “someone had to stay and protect his mum”. Michael said his relationship with the accused in those years was “very strained … He was distraught”.

38. [296]

    Michael confirmed that the accused lived with him in South Kempsey for a year when he was aged 14, while Ms Williamson was in a relationship with Mr Williamson. During this period, the accused was able to connect with his Indigenous family for the first time. However, his being very light-skinned “didn’t sit well” with some of his Indigenous family. At the same time, some of his non-Indigenous friends distanced themselves from him. As a result, he was not accepted by either side. He became involved in several fights at school.

39. [297]

    The accused continued to worry about Ms Williamson while he was living with his father and returned to live with her, but remained at the high school at South Kempsey.

40. [298]

    Michael was asked to describe South Kempsey. He said:

41. [299]

    Michael said that in about 2009, he was attacked by three men with machetes. He received wounds to his head, torso and legs. The accused visited him in hospital, “before they’d stitched me up completely”.

4. Addresses of counsel

1. [300]

   The Crown submitted that the accused had a pre-existing tendency to engage in significant threats of violence over minor incidents involving motor vehicles (the pre-existing tendency”). Shortly prior to the accused’s contact with Mr Tozer on the evening of 28 July 2021, when he returned home to pick up his Rottweiler, his words concerning his intention in respect of Mr Hunt, that he would “jump on his head before he gets home to his wife”, demonstrated the agitated and aggressive mood he was in and was consistent with his pre-existing tendency.

2. [301]

   The Crown referred to the CCTV, eyewitness and forensic evidence which it said established that the accused’s Getz did make contact with the side mirror of the XR8 and significantly damage it. The Crown submitted that the accused can be heard on the CCTV admitting that Mr Tozer had “pulled out” on the accused’s car and wanted the accused to pay “your insurance”. When Mr Tozer realised the accused was not going to stop, he gave chase to the accused, which would have added to the accused’s pre-existing agitation and anger.

3. [302]

   The following is a summary of the Crown’s submissions as to the confrontation between the accused and Mr Tozer. When Mr Tozer arrived at Number 10, he alighted, most likely carrying a pen to take the accused’s details, and walked up the driveway. Mr Tozer was not carrying a weapon and did not engage in physical violence. The accused was immediately aggressive to him. A “slapping sound” can be heard on the CCTV audio, at the time when the violence against Mr Tozer commenced. Mr Tozer retreated back down the driveway towards his car. The “bang” was another blow and possible contact with the metal side fence. Mr Tozer continued to try to retreat, in so doing, sounding his car horn twice, either inadvertently or trying to attract the attention off anyone nearby.

4. [303]

   The position of Mr Tozer’s right shoe, which had a miniscule drop of blood on it, and the fact that his tracksuit pants were pulled down suggests that at some stage likely early on in the assault, the accused dragged Mr Tozer by his feet. The accused said “I’m scared for my safety”, because he was aware that he was inflicting serious violence on Mr Tozer and it was possible that neighbours were watching him.

5. [304]

   The Crown submitted that what the accused can be heard saying on the CCTV audio is inconsistent with a belief that what he was doing was in self-defence. The accused’s later admissions to having stomped on Mr Tozer’s head and kicked him is consistent with the CCTV audio of exertion noises. The accused’s assault of Mr Tozer included punches, kicks and stomping on parts of his body and head. The soaking of blood through the accused’s right shoe is indicative of the extent of the violence. It occurred while Mr Tozer was yelling out for help and continued for some time after he was silent, likely unconscious, which indicates the extreme level of his anger towards Mr Tozer.

6. [305]

   The accused told significant lies to his neighbours and police; why and from where Mr Tozer followed him; that Mr Tozer was armed; and where the knife was. His later claim that Mr Tozer was armed with the screwdriver was a lie. The lies related to material issues in the trial, namely, the true reason that the accused engaged in violence towards Mr Tozer; and a fear that if he told the truth, his acts of violence against Mr Tozer could not be justified.

7. [306]

   The accused did not sound scared on the CCTV audio or identify what he was scared of. He did not refer to a weapon.

8. [307]

   Counsel for the defence noted that a critical aspect of the elements of excessive self-defence that the Crown must negate beyond reasonable doubt, is that the accused believed, at the relevant time, that what he did was necessary for his defence and/or, by extension, the defence of his mother. This necessitated an understanding of the accused’s extraordinary attributes which might have had a bearing in the formation of any such belief.

9. [308]

   To that end, counsel extensively reviewed the evidence as to the accused’s background, submitting that it established that the accused was highly sensitised to violence and threats of violence towards and around Ms Williamson at the hands of her domestic partners. Although she was not at home at the time of the incident, she could have arrived him at any time, including at the time of the incident. Counsel submitted that:

10. [309]

    Counsel for the defence submitted that when SC Taylor questioned the accused on 4 November 2020 at Number 10 about the Crescent Head incident:

11. [310]

    Counsel for the defence submitted that on balance, the accused’s claim that he was shaking was credible because of his explanation at the time to SC Taylor that interactions with police brought back memories of past interactions in the context of domestic violence. Accordingly, the tendency had not been established and the interaction with SC Taylor helped explain some of the “extraordinary attributes” of the accused.

12. [311]

    As to the events of 28 July 2021, counsel for the defence submitted that the statements of Ms Phillips and Mr Mills established that the accused was in a good mood that morning and afternoon respectively. Mr Mills’ statement suggested that the accused did not appear to be affected by drugs or alcohol. Counsel said:

13. [312]

    Counsel for the defence submitted that the accused’s words to Mr Hunt, “You’re fucked. I’ll be back with my Rottweiler”, were an empty threat, since if he really intended to harm Mr Hunt, the obvious time to do so would have been there and then, at the police station. As a local resident, the accused could be assumed to know that the police station was not operating at that time of night. He would surely have realised that Mr Hunt would not still be there by the time he returned with his dog which, in any event, was a friendly dog.

14. [313]

    Although it was conceded that while he was home getting his dog, the accused said the words, “jump on his head right now before he gets home to his wife” and repeated the words, “before he gets home to his wife”, the Court would be slow to infer that he meant that threat literally, since there is no evidence that he knew Mr Hunt, whether he had a wife, or his destination that night. One cannot conclude that the accused’s objective was to confront Mr Hunt with the Rottweiler, since the route he took was consistent with him intending to drive directly to the bottle shop to replace the beers in the fridge, given that Paragon Avenue was a one-way street. At the bottle shop shortly afterwards, he was “comparatively calm and settled in his demeanour”.

15. [314]

    Counsel for the defence acknowledged the significance of the issue of the side mirror collision in establishing the accused’s state of mind at the time of the altercation. Counsel did not concede that there had been a collision, although it was acknowledged that various pieces of evidence circumstantially supported that proposition. Counsel submitted that the probative value of the reconstruction of the mirror housing was reduced by the fact that the pieces of plastic had been on the road for a day and a half before they were retrieved and therefore could have been damaged, since they were on the main thoroughfare into and out of town. There was no sign of damage on the XR8’s mirror casing, which one would logically expect to have been the point of impact. Although the Getz left side mirror was observed at 8:32pm to be bent back, there was a reasonable possibility that others walked past the car that night and knocked the mirror back as they did so.

16. [315]

    As to the XR8’s mirror panel that was located on the back seat of the Getz, counsel for the defence suggested there were only two possibilities as to how it came to be there. Either there was, in fact, a collision, and it flew in through the open passenger window, landing on the back seat, or it was placed there by the accused or someone else, after the incident. The most likely explanation is the latter one, since it had the accused’s blood on it, which was likely to be a transfer stain; that the accused placed it there “when he was seen to be moving round the scene and coming to and from his car, looking for his phone”. The accused touched it “most likely removing it from the XR8” and placing it in the Getz.

17. [316]

    There was evidence that “some music with loud bass playing” was coming from the area of the cars on the front lawn of Number 10 shortly after the XR8 pulled up. Accordingly, the impact of the side mirrors may have been less destructive than the pieces of plastic located on the roadside and the condition of the mirror panel might suggest, so there is a reasonable possibility that the accused did not notice the collision when it occurred, perhaps because he was playing loud music. It was reasonably possible that he did not realise he was being pursued until he turned off Gregory Street, into Simpson Street.

18. [317]

    Counsel submitted that if Mr Tozer merely wished to get the Getz registration, he could have done so when he was following it. Clearly Mr Tozer was angry and wanted to “reckon” with him. Being chased by “a high-powered car with a high revving engine” would have been a frightening experience for anyone, even if they were aware of the reason for the pursuit.

19. [318]

    Counsel for the defence submitted that it was not part of its case that Mr Tozer was armed with a knife or screwdriver when he approached the accused, but rather, the defence adopts the submission of the Crown that it is most likely Mr Tozer had a pen in his hand when he approached the accused.

20. [319]

    Counsel submitted that the evidence establishes that Mr Tozer approached the accused very closely, prompting the accused to say that Mr Tozer was jumping into his face, which caused the accused to genuinely fear for his safety. Mr Tozer then moved onto the front lawn, but since there was no front fence, the accused was entitled to consider the lawn to the kerb as all part of the front yard for Number 10. The accused was not being disingenuous when he repeatedly said that he was scared for his safety.

21. [320]

    If the incident was observed by a third person, the CCTV audio does not suggest that the accused tried to dissuade them from doing whatever they thought appropriate, which is not indicative of a guilty mind.

22. [321]

    The defence suggests that when the accused became aware that there had, in fact, been a collision, he can be heard referring to the issue of insurance on the CCTV audio. The defence accepts that the accused lied to neighbours and others when he said he did not know why Mr Tozer followed him.

23. [322]

    Counsel for the defence identified some assertions made to neighbours that were lies. These were, to Mr Young, that he had an argument with the man about a car park; to Mr Cooper that he had been followed home from the beach; to Clancey that he had an altercation downtown with the man; to Mr Ferrari that he had an argument in a pub with the man; to Karen that it arose from a parking issue.

24. [323]

    Counsel submitted that these lies did not constitute a consciousness of guilt, because the lie must relate to the subject offence, which is murder, whereas the lies he told were a denial of there being a collision between the two vehicles.

25. [324]

    The accused’s claim that Mr Tozer threatened him with a knife, while inaccurate, was not necessarily a lie, but rather, his perception, or an assumption he made, at the time. At the time he was spoken to by SC Thompson and SC Black, he was in a highly emotional state and they acted towards him in “an unprofessional and antagonistic manner”. Although he repeated his false claims to Sgt Goddard, he was “locked in” to the account he had already given. He was “less dogmatic” when Det Sgt Barber spoke to him, conceding he didn’t know what Mr Tozer had in his hand, saying, “Well honestly, I got back here and thought I’m not going through this shit again … my dad got stabbed last year”, which, together with other statements he made in that interview, reflected his state of mind and the impact of his early childhood experiences.

26. [325]

    In the formal interview the next morning, the accused “more or less conceded that he was not sure what it was that the deceased had in his hand but maintained that he believed at the time that he had ‘something’”. Therefore, since Mr Tozer may have had a pen in his hand, his earlier claims about being threatened with a knife were not necessarily lies.

27. [326]

    Similarly, counsel for the defence submitted that the parts of the gaol calls that are relied upon as lies evidencing consciousness of guilt do not stand up to scrutiny as such.

28. [327]

    Counsel for the defence submitted that if the fatal injury was a kick that caused the axonal injury to his head, it was likely that this injury occurred while Mr Tozer was crawling, and therefore, relatively early on in the assault, when the accused was more likely to have a genuine belief that it was necessary to use the force that he did on Mr Tozer, in which case, the appropriate verdict is not guilty on the charge of murder.

5. Further directions of law

1. [328]

   I remind myself of the directions made at the outset of the judgment and, pursuant to s 133(3) of the Criminal Procedure Act, I make the following further directions.

2. [329]

   In the context of the primary issue of fact in this trial, the Crown has the burden of proving beyond reasonable doubt that, at the time that the accused fatally injured Mr Tozer, he did not believe that the force he used was necessary for his self-defence or for the defence of his mother.

3. [330]

   The Court cannot draw any inference adverse to the accused from his decision to not give sworn evidence. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. The Court must not speculate about what might have been said in evidence if the accused had given evidence.

4. [331]

   A version, or versions, of events expressed by the accused is before the Court through the evidence of admissions made to civilian and police witnesses in the immediate aftermath of the incident and in phone calls he made while on remand.

5. [332]

   If the Court either accepts a version of the accused as to his belief at the time or concludes that there is a reasonable possibility that it is true, then the Court must acquit him of the count of murder.

6. [333]

   If the Court does not accept that any of the accused’s accounts are reasonably possible, then it must put them to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that the Court does accept, proved beyond reasonable doubt that the accused did not believe at the time that he inflicted the fatal injury or injuries that it was necessary to do so for his defence, or that of his mother?

7. [334]

   The Crown relies on circumstantial evidence to establish its version of events during the confrontation from which, it submits, the Court may conclude beyond reasonable doubt that the accused did not believe that his infliction of the fatal injury or injuries was necessary to defend himself or his mother. I direct myself as follows, in relation to circumstantial evidence.

8. [335]

   Circumstantial evidence may be as convincing and reliable as direct evidence. It will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole, not individually or in isolation, and upon whether the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.

9. [336]

   The Court must approach a circumstantial case by considering and weighing, as a whole, all the facts it finds established by the evidence. It is incorrect to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt.

10. [337]

    The correct approach is first to determine what facts the Court finds established by the evidence. Any particular fact to be taken into account by the Court does not need to be proved beyond reasonable doubt. The Court then considers all of those facts together as a whole, and asks whether it can conclude, from those facts, the accused’s guilt. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because the Court is not satisfied of the accused’s guilt beyond reasonable doubt, in which case the Court would find the accused not guilty.

11. [338]

    If the Court finds that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then it must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused. If there is, the circumstantial case fails, because the Court cannot be satisfied beyond reasonable doubt of the accused’s guilt.

12. [339]

    Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. The Court must not base its conclusion upon mere speculation, conjecture or supposition. In order to be satisfied beyond reasonable doubt of the accused’s guilt of the offence, the Crown must first persuade the Court that the inference or conclusion it relies upon is a reasonable one to draw from the facts that it finds established by the evidence. It then must prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is the accused’s guilt. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion sought by the Crown, then the Crown’s circumstantial case has failed.

13. [340]

    In its opening, the Crown stated that it relied upon evidence of certain statements that were made by the accused as lies that may be regarded as uttered out of his consciousness of guilt of the charge of murder, that is, that he did not believe that it was necessary to inflict the fatal injury or injuries for his self-defence. These are as follows:

14. [341]

    The first set of these utterances, which was primarily made to civilian and police witnesses, is either to the effect that he did not know why Mr Tozer followed him to Number 10 or that it was because of a reason other than that he had collided with Mr Tozer’s driver’s side mirror.

15. [342]

    There are certain matters that, as the fact-finder, I must be satisfied of, if I am to conclude that an utterance identified by the Crown does, in fact, constitute a lie that is told from a consciousness of guilt. Those steps are:

    1. (1)

       Whether it is in fact a lie; that is, I must be satisfied that what the accused said was untrue and that at the time of saying it, he knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness, is not a lie.

    2. (2)

       It must be a lie that relates to an issue that is relevant to the offence the Crown alleges that the accused committed, that is, that he did not believe that the force he used against Mr Tozer was necessary in self-defence or that of his mother. It must relate to some significant circumstance or event connected with that alleged offence.

    3. (3)

       The reason the accused told this lie must be because he feared that telling the truth might reveal his guilt in respect of the charge he faces. In other words, he feared that telling the truth would indicate that he did not genuinely believe that his actions were necessary in self-defence.

16. [343]

    I remind myself that people do not always act rationally, and that telling a lie may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt, for example, a lie may be told out of panic or to escape an unjust accusation, in which case it cannot be used as evidence of the accused’s guilt. If that is so, I will put it to one side and focus my deliberations upon the other evidence in the case.

17. [344]

    I direct myself as to how the tendency evidence is to be approached, as follows.

18. [345]

    I must consider the evidence relating to each of the alleged tendencies and determine whether the evidence relied upon does support that particular tendency, as alleged; that is, whether it enables the inference to be drawn that the accused had the tendency claimed by the Crown.

19. [346]

    I remind myself of the care that needs to be applied to the drawing of inferences and I bear those directions in mind in considering this aspect of the evidence. In particular, I must consider whether there might be alternative explanations for the evidence and take care not to draw an inference unless it is a rational inference in the circumstances.

20. [347]

    If I am not satisfied that the evidence supports the alleged tendency, I must put that issue to one side and confine my consideration of the evidence to the other parts of the Crown’s case.

21. [348]

    If I find the accused did have the tendency the Crown contends for, then I can use that established tendency in considering whether it is more likely, in the context of the other evidence, that he did the act that the tendency evidence is admitted to establish. I must consider whether the accused acted in that particular way on the specific occasion that is the subject of the charge.

22. [349]

    Finding the accused did have the tendency is not enough to prove the accused’s guilt. It may assist the Crown to prove the accused committed the offence, but it is not sufficient by itself. The question is whether it makes it more likely that the accused conducted himself in the way the Crown alleges on the occasion that is the subject of the charge. That is the only way the accused’s alleged tendency may be used.

6. Consideration, findings of fact and verdict

1. [350]

   The accused is guilty of the offence of murder of Mr Tozer if the Crown establishes, beyond reasonable doubt, that at the time he inflicted the fatal injury or injuries on Mr Tozer, he did not believe that it was necessary to do so in order to defend himself or his mother. That question is to be determined subjectively: R v Katarzynski [2002] NSWSC 613 at [23], approved in R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440 at [50]-[51]. By his plea to the offence of manslaughter on the basis of excessive self-defence pursuant to s 421 of the Crimes Act, the accused accepts that the remaining elements of murder, when Div 3 of Pt 11 of the Crimes Act is raised, are made out, and I am so satisfied on the evidence in the trial.

2. [351]

   The evidence in the trial as to what the accused believed at that critical time includes the statements made by him to neighbours, police, his family and friends. That account changed during the course of the night of the incident and the following morning, and again when the accused became aware of the forensic results on the screwdriver and pen, and the existence of the CCTV audio and its content. Some elements of those various accounts were demonstrated to be patently untrue by aspects of the police investigation, for example, images captured by CCTV cameras around South West Rocks; the statements of eyewitnesses as to where the paths of the accused and Mr Tozer first crossed that night; and the route they took to Number 10.

3. [352]

   Indeed, the Court was invited by counsel for the defence in his closing address to contemplate a version of events that in some respects the accused did not adopt to others, such as that he may have realised that he had side-swiped the XR8 right side mirror during or immediately after the confrontation.

4. [353]

   The defence case is that the accused was not in an angry or aggressive mood when he first encountered Mr Tozer. After picking up his dog, the accused returned downtown only to buy replacement beers for the fridge, as his mother had requested him to do, earlier that day.

5. [354]

   The accounts by the accused to others as to the events that followed may be essentially reduced to the following. Mr Tozer, who was a stranger to the accused, chased him to Number 10. The accused did not know why he was being chased or, if he did, the chase was unjustified, or apparently irrational. In any event, the fact of the chase, and its aggressive manner, caused him to be afraid. The accused made attempts to ‘lose’ the XR8, eventually returning to his address at Number 10. After the accused parked up his driveway, the XR8 pulled up across the bottom of his driveway, which meant he could not reverse out and drive away in the Getz.

6. [355]

   Mr Tozer got out of his car and ran towards the accused, saying he was going to kill him, and holding something in his hand that the accused believed would be used to stab him. The accused screamed out to his neighbours for help, but none was forthcoming. The accused punched Mr Tozer twice and kicked him to the head, causing Mr Tozer to fall to the ground. He did this because he did not want to be stabbed. Before becoming aware of the content of the CCTV audio, his version was that those three blows were the full extent of his violence towards Mr Tozer; Mr Tozer was knocked out and did not wake up. Afterwards, his account was that Mr Tozer may have got back to his feet, and if he did, the accused does not recall what happened from that point on until, after the confrontation, he looked for his phone and could not find it. He had a cigarette on the patio while he waited for Mr Tozer to regain consciousness. When Mr Tozer did not wake up, he crossed the road to 16 Simpson Street and asked to borrow a phone to call the authorities.

7. [356]

   This version of events is now considered against the other evidence in the trial.

8. [357]

   Ms Williamson’s evidence and the statements of Ms Phillips and Mr Mills suggest that the accused was in a good mood on 28 July 2021, at least until he left Mr Mills’ residence at Kempsey between 4 and 5pm. The accused later told police that he drove directly from Mr Mills’ place to South West Rocks. However, he was captured by CCTV driving through Frederickton, which is only 8km from Kempsey, at 5:54pm, which suggests that he did not drive directly home from Mr Mills. However, I note that Mr Mills is deceased, so that his version of events was unable to be tested by cross-examination. I draw no inference adverse to the accused as to the apparent inconsistency arising from Mr Mills’ account of when the accused left his place and the whereabouts of the Getz at 5:54pm.

9. [358]

   When Mr Hunt saw the accused shortly after 6pm in Plummers Lane, the Getz was parked in the middle of an intersection, blocking the other road (Menarcobrinni Road) and the accused was urinating by the driver’s door. Unsurprisingly, Mr Hunt dimmed his lights, slowed down and continued on.

10. [359]

    The accused’s behaviour towards Mr Hunt after that incident was bizarre. He apparently took offense to Mr Hunt slowing down, and tailgated him, with his powerful light bar turned on, for the distance of 14km to South West Rocks police station. As the accused tailgated Mr Hunt along Gregory Street, Mr Wilson, who followed them, saw the accused’s car veer to the left a few times.

11. [360]

    I am satisfied that the words spoken by the accused to Mr Hunt outside the police station (“You’re fucked. I’ll be back with my Rottweiler”), as he pointed to Mr Hunt, were said in anger. Mr Hunt said the accused’s tone was aggressive. Mr Wilson said he heard the young driver, who was clearly the accused, “yell out abuse aggressively”. Ms Yeo, who was driving past, said the young driver was “glaring angrily towards the older man”.

12. [361]

    The words captured on the CCTV audio when the accused arrived at Number 10 to pick up his dog (“Jump on his head right now before he gets home to his wife”), and the inaudible yelling, indicate that he was in a highly agitated and aggressive state, and at that point, was predisposed to physical aggression. The fact that there was no-one home, so that he was yelling to himself, adds to the bizarreness of his behaviour. I am satisfied that he returned to the police station with the intention of finding and confronting Mr Hunt, even though an expectation that Mr Hunt would be waiting for him was irrational.

13. [362]

    The Crown in its opening and the defence in its address submitted that the 25 impact sounds that can be heard on the CCTV audio shortly before the sounds of the accused coming out of the house to get into the Getz, are consistent with him punching his speed ball in the garage. There is insufficient evidence to conclude that is so.

14. [363]

    The accused returned to the police station and continued on to the bottle shop. There is nothing abnormal about the accused’s demeanour outside the bottle shop, as captured on CCTV. However, the accounts of Mr McGrath and Ms Boschke, to the effect that the accused repeatedly disobeyed their requests to not come into the shop because he was not wearing a face mask, and directed menacing threats at them to report the shop to the council, point to an element of unnecessary provocativeness in his behaviour at that time. The fact that the accused drove around the block after he left the bottle shop and turned again into Paragon Avenue from Memorial Avenue, which gave him a view of the street outside the police station, is also indicative of his continuing desire to find and confront Mr Hunt, even though his expectation that Mr Hunt would have remained in the area was irrational.

15. [364]

    Accordingly, I am satisfied that the accused was angry with, and aggressive towards Mr Hunt, and that his anger and aggression had not abated by the time he met Mr Tozer.

16. [365]

    The Crown relies upon inferential evidence to prove that the Getz impacted the right side mirror of the XR8 and that the accused was aware of that fact at the time it occurred.

17. [366]

    I am satisfied that, after leaving the bottle shop and driving around the block, the accused drove south along Gregory Street and at about 6:38pm, he passed the XR8. I am satisfied by the statement of Ms Hardy that the XR8 was parked with its brake lights on at the time, that is, that it was stationary. I am satisfied by the images captured by the Outdoor Adventure CCTV that, just before the Getz passed the XR8, it veered to the left and crossed over the unbroken parking lane line.

18. [367]

    I am satisfied by the evidence of the recovered pieces of broken white plastic covering from Gregory Street and the subsequently-observed retracted position of the Getz left side mirror (which had been seen to be in the extended position on CCTV moments before, outside the bottle shop), that the Getz left side mirror struck the right side mirror of the XR8. The impact caused the Getz mirror to fold back and the XR8 mirror to break off its anchor point, the XR8 mirror casing to fracture and the pieces to spray forward over the parking lane. The fact that Ms Hardy thought the Getz just missed the driver's side of the XR8 does not mean that the impact did not occur; it was night-time and she may not have had a line of sight to the impact point, since she was in the driver’s seat, that is the right side, of her vehicle.

19. [368]

    The likely precise impact point of the two mirrors was the casing of the Getz and the rim of the XR8 mirror panel, both of which were hard black plastic. The black rim, which protruded as a border around the XR8 mirror panel, would have been the point of impact with the back of the casing of the Getz mirror. Since the contact point of both side mirrors was hard black plastic, one would not expect to find a transfer of colour from one item to the other or, necessarily, marks. This is consistent with the expert evidence of Ms Adalba.

20. [369]

    The impact of the side swipe, given the damage done to the XR8 driver side mirror, would have produced a loud bang. Four minutes earlier, as the Getz drove off from the bottle shop, the front passenger window was seen on CCTV to be fully wound down, and the driver’s window was seen to be about one-third of the way down. It is apparent from photographs of the interior of the front passenger door of the Getz that its window was manually operated, so that it is extremely unlikely that the accused wound it up in the four minutes before he passed Mr Tozer, or that the accused leaned across and wound it up as he was driving. The left side mirror of the Getz, having folded back from the impact, could not be utilised by the accused to sense Mr Tozer’s vehicle as he gave chase.

21. [370]

    There is no evidence which suggests, or from which it could reasonably be inferred, that the accused only realised that he had side-swiped Mr Tozer’s right side mirror during the course of the accused’s application of force to Mr Tozer. Accordingly, I do not accept the defence submission to that effect.

22. [371]

    During the confrontation, the accused shouted at Mr Tozer when he was presumably unconscious:

23. [372]

    I interpret this passage as meaning that the accused blamed Mr Tozer for the damaged right side mirror of the XR8, for pulling out from the kerb as the accused passed him. An available, indeed inevitable, inference from that passage was that the accused knew at that time, that is, during the confrontation, that the vehicles’ side mirrors had collided.

24. [373]

    I conclude that there is only one explanation reasonably available on the evidence as to how the XR8 mirror panel came to be on the back seat of the Getz with the accused’s blood on it; which is that the accused moved it there after he stopped his application of force on Mr Tozer, and before the police arrived at Number 10. It is further evidence that the accused knew that his vehicle had impacted the XR8’s side mirror, since the only motive for him to remove it from the XR8 and place it elsewhere was to attempt to avoid questions being asked by those about to attend on Mr Tozer. Again, it was irrational, but nevertheless I am satisfied that he moved it for that reason.

25. [374]

    For these reasons I am satisfied, beyond reasonable doubt, that the accused knew immediately, as the impact occurred, that his side mirror had struck the side mirror of the XR8.

26. [375]

    The Crown submits that the accused’s statements to civilian and police witnesses that were to the effect that Mr Tozer was inexplicably following him and that the route of the chase was downtown along Mitchell Street were lies that constituted a consciousness of guilt, because they related to a material issue and he feared that the truth would reveal that he did not believe that his conduct was necessary in self-defence.

27. [376]

    As noted, the defence accepted that they were lies, but contended that they did not relate to the offence of murder; their relevance did not extend beyond the question of whether there had been a collision.

28. [377]

    It follows from the findings I have made that I am satisfied that the accused lied when he told civilian and police witnesses that he did not know why Mr Tozer followed him home, alternatively, that he was followed home after a car parking incident or an incident in a hotel or bottle shop or in the Chinese restaurant, or that Mr Tozer had racially insulted him. As well, the accused lied when he said that the route they took from downtown to Number 10 was along Mitchell Street.

29. [378]

    I am satisfied that these lies were made to avoid criminal responsibility for injuries the accused had inflicted upon Mr Tozer by avoiding the truth, which was that there was a rational reason for Mr Tozer to follow him home and confront him. His claim that Mr Tozer’s behaviour was inexplicable would contribute to the accused’s explanation that he hit Mr Tozer in self-defence.

30. [379]

    Accordingly, I am satisfied that these lies disclosed a consciousness of guilt.

31. [380]

    These are my findings as to what can be heard on the CCTV. I am satisfied beyond reasonable doubt of the fact that these words and sounds can be heard, and of the inferences that I draw from them.

32. [381]

    Seconds after Mr Tozer arrived at Number 10, a sound consistent with him opening his car door is heard (there is no sound of him closing it, which is consistent with observations made by neighbours and police that the driver’s door of the XR8 was open when they arrived shortly after 7pm). Seconds later, as the accused’s dog is barking, Mr Tozer can be heard asking the accused, “What the fuck is your problem? Why’d you get my … Why’d … dipstick?”. His tone is questioning and firm, but not aggressive. The indiscernible portions are fractions of seconds, so that the tone of the questioning is unaffected by those gaps. A figure is then seen on the CCTV driveway video moving along the fence line towards the house, which I am satisfied was Mr Tozer walking up the driveway. Seconds later, the accused is heard, yelling at him, “Don’t be jumping up to my face cunt, I’ll knock you clean the fuck out”. This is followed by a slap-like noise and Mr Tozer immediately shouting, “Fuck off!”. Although it may well be that at that point the accused struck Mr Tozer, I cannot be certain.

33. [382]

    The accused then yelled at him, “I’ll knock you clean the fuck out cocksucker, you’re on my lawn”. As this is said, two figures are seen to move along the driveway towards the road. Mr Tozer said, “I’ll get off it then”. As he said those words, the figure that was behind can be seen to quickly move up to the figure in front, and a loud clanging sound can be heard, coming over the top of the last of Mr Tozer’s words. I am satisfied beyond reasonable doubt that the accused moved up behind Mr Tozer and assaulted him with a forceful punch or kick, probably knocking him into the metal side fence, thus causing the loud sound. Mr Tozer again immediately shouted “fuck off!”

34. [383]

    Over the next six seconds, the accused is heard to repeatedly say, “You’re on my lawn” and “You’re trespassing”, even though it is apparent that both men are in the vicinity of the XR8. I do not accept the defence submission that because Number 10 did not have a front fence it was open to the accused to regard the footpath as private property.

35. [384]

    A horn sounds twice. A recording of the XR8’s horn and the horn of the Getz was made by police, and was an exhibit in the trial. The XR8 horn had a distinct sound. I am satisfied that it was the horn of the XR8 that is heard at this stage on the CCTV audio. The fact that it was sounded twice in relatively equal periods in quick succession satisfies me that Mr Tozer sounded it deliberately, as he tried to get into his car, and that he did so in order to summon help. I am satisfied that, during the confrontation, the accused pulled or dragged Mr Tozer in a northerly direction along the gutter, in view of his pants being pulled down and his right shoe being between the XR8 and the grate. It is likely that occurred at this point, as Mr Tozer tried to get into his car.

36. [385]

    Between 6:42:17 and 6:42:25, the accused in quick succession said he was “scared” and, three times, “I’m scared for my safety”. Those expressions were followed by the accused saying, “Who are you, who are you? I’ll knock your head off, cunt. What we want”. This is a transitional point in the confrontation. The tone of the accused’s voice, the sounds of multiple impacts, the groans and screams of Mr Tozer and the desperation in Mr Tozer’s voice when he did speak suggest that the level of violence escalated markedly immediately after these words were spoken and remained at that elevated level thereafter.

37. [386]

    There are a few seconds of silence after those words, followed by the first of many drawn-out screams by Mr Tozer, and his words in a panicked tone, “Stop it, I can’t breathe”. For the next 60 seconds, Mr Tozer can be heard screaming and calling out for help. The accused’s words are softly spoken, in a relatively calm tone, but unclear.

38. [387]

    There are noises made by the accused, often in quick succession, that I find were involuntary sounds made during physical exertion, in this case presumably associated with forceful punches or kicks; some major and some relatively minor. An example of major exertions is at about 6:43:33, heard over gasps by Mr Tozer.

39. [388]

    At around 6:43:45 to 6:44:15, a third voice can be heard, with whom Mr Tozer appears to engage, pleading that the person not leave him there. The voice sounds like it is some distance away from the accused and Mr Tozer. The presence of a third person is supported by the accused’s account during questioning by Sgt Goddard and Det Sgt Barber that he believed that neighbours had witnessed the physical confrontation, which adds weight to the proposition that a third party witnessed part of the physical confrontation and has not come forward.

40. [389]

    Over a period of 13 seconds until 6:44:40, there are 16 sounds of physical exertion with a verbal aspect, sounding like “hump”. Mr Tozer’s voice is not heard again. At 6:44:40, the accused is heard saying, “kick box … cunt. I’ll jump on your head”. As he said “head”, the first of eight major exertion sounds is heard, followed by three minor sounds, ceasing at about 6:45:15. I am satisfied beyond reasonable doubt, by that coincidence of events, that when the accused said “head”, he either kicked or jumped on Mr Tozer’s head.

41. [390]

    From that point until 6:51:28, that is, over the next six minutes and 13 seconds, the accused is heard to make 16 sounds of major exertion and at least 29 sounds of minor exertion. I am satisfied that those sounds were associated with the accused applying blunt force to Mr Tozer, by either punches, elbowing, kicks or stomps.

42. [391]

    In view of Dr du Toit-Prinsloo’s opinion as to the cause of Mr Tozer’s death, namely, blunt force head and abdominal injuries, in particular, the axonal (rotational) injury to Mr Tozer’s brain, I consider the timing of the infliction of the fatal injury or injuries to be in the period after 6:42:31, that is, after the accused said, “I’ll knock your head off, cunt. What we want”. It is not possible to conclude with certainty from the evidence whether the axonal injury was inflicted before or after Mr Tozer is last heard to be conscious or whether the injury came about by one or more blows to the head, although it is likely to be one or more of the eight sounds of major impact shortly after 6:44:50 when the accused said “kick box” and that he was about to jump on Mr Tozer’s head.

43. [392]

    As noted, the accused said during his formal police interview that when Mr Tozer arrived, and alighted from his car and chased the accused with a weapon, he was saying he was going to kill the accused. The accused also said that he, that is the accused, was “screaming out for help”, and “yelled for my neighbours … Help me. Help me stop him. But no-one would listen”. I am satisfied beyond reasonable doubt that if those words, or similar, were yelled or said by the accused, they would have been captured on the CCTV audio and would be audible. I am satisfied beyond reasonable doubt that the accused did not say or scream such words.

44. [393]

    As noted in Fuller (No 2) at [38], the relevance of the tendency to be derived from the evidence of the two car park incidents in the Crown case was as to the issue of whether the accused was the initial aggressor when he and Mr Tozer arrived at Number 10.

45. [394]

    Having heard Ms Bilsborough’s evidence as to those two incidents, to the extent that it does establish a tendency as alleged, I do not regard it as useful in resolving that issue of fact, that is, whether the accused was the initial aggressor at Number 10. This is because, having heard all of the evidence in the trial as to the confrontation between the accused and Mr Tozer, it seems to me that the circumstances described by Ms Bilsborough and the evidence as to what occurred at Number 10 are so different, that evidence of the tendency does not assist with the question of whether the accused acted in a particular way during the confrontation. Accordingly, I disregard that evidence.

46. [395]

    Mr Tozer is not heard on the CCTV audio to say or infer that he has a weapon or to say something that could reasonably be interpreted as a threat of physical harm to the accused or his mother. The only times that Mr Tozer sounded angry were when he told the accused to “fuck off”, which was in the context of him verbally responding to the accused. Mr Tozer is seen to be on the accused’s private property for about 15 seconds, when he walked up to where the accused was and then immediately withdrew back down the driveway, saying he would get off the accused’s lawn. It is apparent that the accused in fact prevented Mr Tozer from leaving.

47. [396]

    The accused is not heard on the CCTV audio to accuse Mr Tozer of having a weapon. He is heard to say the words that he was scared, but in an aggressive tone and immediately after he had stopped Mr Tozer from leaving. The accused did not move away from Mr Tozer or call out for help or try to remove himself from the location, for example, by going into the house or running down the street.

48. [397]

    At 6:47:15, when Mr Tozer had been silent, most likely unconscious, for about two and a half minutes, the accused said, “You threatened me. I felt scared. You were on my private property, I defended myself. That’s my right”. The accused is not suggesting by those words he was scared at that time, but rather that he had been scared earlier in the confrontation.

49. [398]

    When the accused is heard on the CCTV audio to say that he is “scared” and “scared for my safety”, his tone is inconsistent with the ordinary meaning of those words; indeed, it conveys anger and aggression rather than fear and concern. There was no objective indication that he was in fact scared; rather, it is the opposite. Although the accused is heard to say that he had felt threatened, there is no evidence of acts, words or sounds by Mr Tozer that could reasonably be construed as threatening to him, or behaviour by the accused that could be construed as responding to threats, such as calling for help or leaving the scene.

50. [399]

    The tone suggests the words were said by way of self-justification, justifying (bizarrely) to Mr Tozer why he was attacking him, and for the benefit of anyone other than Mr Tozer who may have been in earshot.

51. [400]

    It is apparent that the accused handled the screwdriver, which police found on the patio, after he had Mr Tozer’s blood on his hands, which suggests that the accused handled it in that location after he had stopped attacking Mr Tozer. As noted, the last sound of physical exertion detected on the CCTV audio was at 6:51:44, which appears to be about ten minutes before he appeared at 16 Simpson Street.

52. [401]

    In gaol call 19 (25) to his mother, the accused said that after his confrontation with Mr Tozer, he sat on his verandah and had a cigarette. The only purpose for which, on the evidence, the accused had potential use of a screwdriver at that point in time was to prise the mirror panel from the casing on the XR8. In any event, for the purposes of this judgment, it is unnecessary to determine precisely why the accused handled the screwdriver, since it is accepted by the defence that it was not handled by Mr Tozer.

53. [402]

    As noted, the Crown and defence both submitted that when Mr Tozer got out of the XR8, he “most likely took a pen with him”, presumably to take down the accused’s details, since only Mr Tozer’s DNA is found on the pen lid. After the accused became aware of that fact, he is recorded effectively saying that perhaps Mr Tozer was holding the pen and he, that is, the accused, had mistaken it for a knife.

54. [403]

    However, I note that when the accused handed the pen to Sgt Goddard, he said he had it because, “I try to write down everything that happens”, thereby implying it was his pen, which he routinely carried with him for that particular purpose. I note that Mr Tozer’s wife stated that she did not know Mr Tozer to carry a pen. She said there may have been one in his backpack, but I note that Mr Tozer had placed that in the boot and that he did not access the boot again. If the pen was in fact the accused’s pen, the expert evidence by Ms Friedman as to how DNA may be transferred from one surface to another could explain how Mr Tozer’s DNA was detected on it.

55. [404]

    Since the accused claimed ownership of the pen and the presence of Mr Tozer’s DNA is otherwise explicable, I am satisfied that there is no reasonable possibility that it was Mr Tozer’s pen. With respect, I do not accept the joint submission that it was most likely Mr Tozer’s pen.

56. [405]

    Accordingly, I am satisfied beyond reasonable doubt that Mr Tozer was unarmed and that there is no reasonable possibility that he was holding an item that could be mistaken for a weapon in either of his hands during the confrontation.

57. [406]

    I am satisfied that the accused lied to others in claiming either that Mr Tozer was armed, or that he believed he was armed, with a knife or a screwdriver, and that the knife fell down the grate.

58. [407]

    I am satisfied that these lies relate to the offence because by those lies, the accused attempted to justify the acts and level of violence he perpetrated against Mr Tozer. I am satisfied that these lies were not told out of panic or to escape an unjust accusation. I am satisfied that he lied from a realisation that telling the truth, namely, that Mr Tozer was unarmed and that he did not believe that Mr Tozer was armed, would expose him to criminal liability for the injuries he inflicted on Mr Tozer. They were told out of a consciousness of guilt; that he did not believe that what he did was necessary in self-defence, so he fabricated a threat to his safety.

59. [408]

    The relevance of the evidence of the accused’s childhood and adolescent exposure to domestic and social violence (that is, the stabbing injuries on his father and life in South Kempsey) hinges on statements he made to civilian and police witnesses to the effect that his violent reaction to Mr Tozer’s presence at Number 10 was conditioned by those experiences. In essence, he said that he believed that Mr Tozer was armed when he emerged from his car and he had to immediately neutralise that threat, which he did by punching him twice and kicking him to the head, because he was not prepared to risk Mr Tozer stabbing him or otherwise attacking him or his mother.

60. [409]

    There are difficulties with this version of events. According to the accused, the trigger for his violent response was his belief, based on what he saw or believed (that Mr Tozer was armed) and, based on what Mr Tozer said (that Mr Tozer was going to kill the accused), that Mr Tozer was about to attempt to kill him by stabbing him.

61. [410]

    As noted, Mr Tozer was unarmed and there is no evidence that he was holding something that might give the impression of being armed, and it is apparent from the CCTV audio that he did not express an intent to cause physical harm to the accused. Further, the CCTV audio establishes that the accused’s serious violence against Mr Tozer commenced not when Mr Tozer first emerged from his car and approached the accused, but as Mr Tozer was walking away from the accused and attempting to leave the property, in compliance with the accused’s demand. As well, the accused did not strike Mr Tozer three times, but rather dozens of times after Mr Tozer was incapable of offering resistance, let alone a threat of attack. The fatal injury or injuries were delivered after Mr Tozer was screaming for help.

62. [411]

    As I have noted, aspects of the accused’s behaviour that night were bizarre and/or irrational. Mr Young smelt alcohol on the accused at about 7pm and Const Adnum smelt it on him at Kempsey police station at about 9:35pm. There is evidence of the accused having been diagnosed with stress-induced epilepsy and requiring medication for it, on that night.

63. [412]

    Neither party has submitted that the accused was affected by drugs or alcohol, or by a mental illness or cognitive impairment during the incident in question. Nor is there evidence that would suggest that was so. Accordingly, I regard the references to those matters in the evidence as being irrelevant to the question of the accused’s belief at the time he inflicted the fatal injury or injuries on Mr Tozer.

64. [413]

    For the reasons expressed above, I disregard the accused’s account of his motive for attacking Mr Tozer. The question remains whether, on the evidence, there is a reasonable possibility that the accused believed that it was necessary to inflict the fatal injury or injuries on Mr Tozer, in view of the CCTV audio capturing him saying during the attack that he was scared for his safety and, later, that he had felt threatened. As noted, the words “I’m scared” and “I’m scared for my safety”, were uttered in a tone suggesting he was angry, indeed taunting Mr Tozer, not that he was actually scared of him. In considering this question further, I turn to the evidence of the accused’s alleged tendency to falsely claim he is in fear to manipulate situations and justify criminal activity.

65. [414]

    When the accused was questioned by SC Taylor about the hospital incident, he explained that his motive for damaging the car, which was owned by Ms Bilsborough’s mother, was that she had criticised him at the sensitive moment of the birth of his child. He sought to minimise his responsibility for that criminal act by reasoning that he was “protecting his family” and that he felt threatened and hurt; he had been “shaking and I started feeling like I was getting attacked”; which in my view, is patently illogical.

66. [415]

    The questioning of the accused about the Crescent Head incident had the potential to result in a criminal charge against him. When SC Taylor expressed scepticism by the tone of his voice as to the veracity of some of the accused’s answers, he declined to answer further questions on that topic because, he said, the officer made him feel “quite scared”, and that he was shaking and trembling. He referred to a diagnosis of stress-induced epilepsy, by which I infer he meant to convey that if the questioning continued, he was in danger of having an epileptic fit and, later in the conversation, that his reaction was also due to his past experiences with “bad dealings with police” which caused him to “get shaky”.

67. [416]

    The Crown submitted that the accused demonstrated a tendency to claim he was in fear, in the hospital incident to minimise criminal responsibility, and in the Crescent Head incident to manipulate or control the situation he found himself in, with the two officers.

68. [417]

    The Crown submits that its relevance is that it tends to support the contention that the accused’s expressions captured on the CCTV audio of being scared, fearing for his safety and feeling threatened, did not in fact arise from fear, but were a means of minimising criminal responsibility and manipulating the situation by attempting to justify what he was doing.

69. [418]

    The defence submitted that, on the contrary, the BWVs support the defence case, by illustrating some of the accused’s attributes with respect to his sensitivities in gauging threats, that manifested at Number 10 during the confrontation.

70. [419]

    The question, put simply, is whether the accused on 26 July 2018 and 4 November 2020 was expressing fear and feeling threatened as a tactic, or because he genuinely felt it. I accept that in relation to the hospital incident, the birth of a child may well bring to the fore extreme emotions and sensitivities. However, in the absence of expert evidence as to how the accused’s responses might reasonably be outside the bounds of normalcy, it is absurd to claim that keying the car and writing “slut” and “die” on it were his response to feeling threatened and his way of protecting his family.

71. [420]

    The assessment of the circumstances of the accused expressing fear on 4 November 2020 in relation to the Crescent Head incident is assisted by the two BWVs. The quality of the video and light is very good. Although the accused said he was shaking and trembling, I could not observe him doing so at any point during the encounter on the BWVs and I would expect to see such movement if the accused was experiencing it. He declined to answer further questions at all on that topic and the conversation moved to another issue that involved the accused and SC Taylor. His demeanour remained engaged and calm throughout and he did not express any further discomfort with SC Taylor. He appeared to have a co-operative, indeed friendly, exchange with him thereafter until both officers departed, some 11 minutes later. I find that the accused’s claim that he was scared was false and motivated by a desire to avoid answering further questions relating to the Crescent Head incident.

72. [421]

    I do not accept the defence’s submission as to how the accused’s expression of fear should be understood. I find that the evidence does establish a tendency by the accused to claim that he is in fear to manipulate or control a situation and to justify criminal activity. In other words; he had a tendency to express fear when he was not actually feeling afraid, as a tactic in these situations.

73. [422]

    I return to the other evidence, in respect of the incident at Number 10. Mr Tozer was more than twice the accused’s age and not in good health. The accused had fighting skills. In contrast to the multiple injuries suffered by Mr Tozer, the only injuries incurred by the accused were to his knuckles and a toe on his right foot, which were from punching and kicking Mr Tozer.

74. [423]

    I accept the submission made by counsel for the defence that it is possible for a person to be both angry and afraid. However, I am satisfied beyond reasonable doubt, by the extent of Mr Tozer’s injuries and the inferences that I have drawn from the CCTV audio, that the motive for the accused’s infliction of violence upon Mr Tozer was exclusively one of anger and that there is no reasonable possibility that he believed that the violence he inflicted on Mr Tozer, in particular, the fatal injury or injuries, was necessary for his defence.

75. [424]

    The accused was in an angry and aggressive mood, as his intimidation of Mr Hunt established, and he was outraged that Mr Tozer had followed him home and confronted him on his property. As the accused started to assault Mr Tozer in this one-sided contest, it is apparent from the CCTV audio that his anger developed into sustained, focussed rage, which was unimpeded by the brief presence of a third party and Mr Tozer’s state of unconsciousness. The accused continued to bash Mr Tozer, unaware that his acts, words and sounds were being audio recorded. I am satisfied that there are marks on Mr Tozer’s polo shirt and T-shirt that were caused by the accused stomping on him. I note that in gaol calls 11 (17) and 14 (20), the accused conceded stomping and kicking Mr Tozer, as he also did in his admissions on the night of 28 July 2021. The accused’s established tendency to falsely claim he is afraid for specific tactical reasons adds support to this finding, although I find its use on this occasion is, in any event, independently established by the evidence surrounding the utterances to that effect.

76. [425]

    It follows that I am also satisfied beyond reasonable doubt that the accused did not perpetrate the fatal injury or injuries on Mr Tozer from a belief that it was necessary to protect his mother. In any event, the accused knew she was at work downtown, and that she was not home. Her car was not there. He knew she was not expected home at that time, because he told Sgt Goddard that she worked at the Chinese “six hours every night”. At 8pm, he told Sgt Goddard that she would be knocking off work “soon”. Ms Williamson, reading from her statement to police dated 29 July 2021, said she finished work that night “as per normal” at 8:45pm.

Orders

1. [426]

   As to the count that on 28 July 2021 at South West Rocks in the State of New South Wales, the accused did murder Mark Tozer, I find the accused guilty.